2002 P Cr (PLP)

This revision is filed under section 439, Cr.P.C. by Lutfur Rehman as he is aggrieved of order of Canal Magistrate (2nd Class) passed on 12‑7‑1999 and the order confirmed in appeal by District Magistrate on 28‑8‑1999.

2. Without dilating upon merits of the case, suffice it to say that Liaqat Ali respondent filed a complaint against petitioner complaining of diversion/stoppage of water to his fields which complaint was allowed as prayed for. The petitioner went in appeal before the Sessions Judge who refused to entertain the appeal and, therefore, appeal was brought before District Magistrate.

3. Learned counsel for the petitioner states that in view of section 40, P.P.C. any offence which is either covered by the Code i.e. Pakistan Penal Code or defined under any special or local law and if, the trial is conducted by a Magistrate of the 2nd Class, appeal under section 407, Cr.P.C. would lie to the District. Magistrate and that section 70 added to the Canal and Drainage Act, 1873 defines the offences, therefore, appeal was competently heard by the District Magistrate.

4. Learned counsel appearing for the State and learned counsel appearing for respondent‑complainant, however, are the different view because according to them under section 75 of the Canal, and Drainage Act the Provincial Government shall frame Rules providing an officer to whom, the cases in which the original order shall be challenged in appeal. It is argued that under rules 80/81 of Canal and Drainage Rules no appeal shall lie unless specifically provided and because in the main Act there is no express provision for filing of an appeal, appeal heard by District Magistrate was incompetent.

5. I have gone through section 40, P.P.C., section 407, Cr.P.C. sections 70 and 75 of the Canal and Drainage Act. Section 75 of the Act (ibid) empowers the Provincial Government to frame Rules which Rules though framed but by virtue of rule 103 have been made inapplicable to criminal case. It would mean that in Rules prescribing appeal, the procedure for disposal of the appeal made under the Canal and Drainage Act, section 75. will not be enforced when a trial is conducted by a Criminal Court in airy of the offences mentioned under section 70 of the Canal and Drainage Act. Section 70 of the Act (ibid) refers to different offences and "offence" stands defined in section 40 of the P.P.C. which includes offences under the special and local laws. Therefore, any offence mentioned in section 70 would be an offence within the definition of section 40, P.P.C. as on conviction by Magistrate 2nd Class appeal lies to District Magistrate within the contemplation of .section 407, Cr.P.C. Therefore, it is held that appeal filed and decided by the District Magistrate in the instant case was within his jurisdiction.

6. Question if this revision would be maintainable before this Court is, however, answered in negative because under section 439‑A, Cr.P.C. revisional jurisdiction vests with the Sessions Judge to revise any order passed by any "Magistrate". It would thus be clear that power of the Sessions Judge under section 439‑A, Cr.P.C. are vast and would include order passed by a Magistrate, be it a Magistrate 2nd Class, 1st Class and even for that purpose a District Magistrate would also be a Magistrate though exercising appellate powers. In view of what has been held above, this revision before this Court is misconceived and is accordingly dismissed. However, the petitioner, if so advised and subject to all legal objections that might be raised by the other side, may approach the learned Sessions Judge. H.B.T./500/P Revision dismissed.