2009 PLP 883 (YLR)

MUHAMMAD ALAM KHAN, J.--This appeal filed under section 417(2-A), Cr.P.C. by the complainant Falak Sher is directed against the judgment dated 11-10-2008 passed by the learned Additional Sessions Judge-VI D.I. Khan, whereby the accused/respondents Nos.1 to 3 were acquitted of the charge under section 70 of the Minor Canals Act by invoking the provisions of section 249-A, Cr.P.C.

2. Facts of case giving rise to this appeal in brief are that Malik Falak Sher had lodged a complaint under section 70 of the Minor Canals Act in the Court of Judicial/Illaqa Magistrate of police station Saddar D.I. Khan against Naseer-ud-Din, Naseer and Farid to the effect that on 8-1-2006 at `Digar Vela' on the instigation of accused/respondent No.1, the accused/ respondents Nos.2 and 3 had demolished the water course Minor No.2, Distry No.5, Moga No.8300/TF which passes through the lands of Government under the control of Agriculture Department for the irrigation of his lands since 21-7-2004, schedule/Wara Bandi whereof for 26-1/2 hours has been sanctioned through letter No.7499 dated 21-7-2004 and thus, the accused/ respondents had discontinued the water-supply to his lands and also threatened him of dire consequences.

3. The learned trial Court after recording statement of the complainant under section 200,Cr.P.C. sent the complaint to the S.H.O. for inquiry and report and on receipt of such report, the accused were summoned who attended the Court and the provisions of section 241-A, Cr.P.C. were complied with. The accused/ respondents were formally charge sheeted on 13-12-2006 but they denied the allegations and claimed trial. During the pendency of the proceedings, on 5-3-2008, Doctor Naseer-ud-Din applied to the trial Court for his acquittal under section 249-A, Cr.P.C. but could not succeed as his request was turned down by order dated 10-5-2008. However, his revision thereagainst was accepted by the learned Additional Sessions Judge-VI D.I. Khan vide order dated 11-10-2008 which is now under challenge in this appeal.

4. Mr. Ahmad Ali Khan Advocate, learned counsel for the appellant, submitted that there was strong evidence against the accused/respondents for commission of the offence of demolition of water course and their acquittal under section 249-A by the learned revisional Court was not warranted under the law. It was also argued that previously too, an application dated 24-7-2006 for their acquittal had been submitted which was rejected by the trial Court on 8-11-2006 against which no appeal or revision had been filed and the same had attained finality and thus, there was no justification for moving again a similar application under section 249-A, Cr.P.C. which was barred in view of the decision of the apex Court in the case `State through A.G., Sindh Karachi v. Raja Abdul Rehman 2005 SCMR 1544.

5. I have gone through the available record annexed with the appeal and considered the arguments advanced at the bar.

6. Perusal of the record reveals that the earlier application had been submitted under section 249-A, Cr.P.C. on the ground ',hat previously too, the complainant/appellant had submitted a similar complaint under section 70 of the Canal and Drainage Act, which had later been withdrawn by him. That application was rejected by the Judicial Magistrate on the ground that the subsequent complaint is not a "BAR' to the finding of second complaint and the case will be finally decided after recording of evidence. The subsequent application was on the ground that from 18-1-2006 till 15-12-2006, no evidence was produced by the complainant to prove the charge against the accused/respondents. So the cited ruling, with respect, has got no nexus with the facts of the instant case. Further more, once an acquittal order is secured by the accused in a criminal case, presumption of double innocence accrues to him and strong grounds had to be made out for interference in acquittal order, especially in the circumstances when the accused/ respondents have undergone the agonies of protracted trial for about two years.

7. Consequently, the impugned order of the learned Additional Sessions Judge-VI D.I. Khan is based on correct legal premises as the complainant had failed to produce any cogent evidence in support of his allegations despite lapse of sufficient period. The same is, therefore, upheld and the instant appeal being devoid of any meritable consideration is dismissed in limine. H.B.T./38/P Appeal dismissed.