1970 PLP 620 (SCMR)

HAMOODUR RAHMAN, C. J.‑The petitioner was convicted under section 430 of the Pakistan Penal Code and sentenced to pay a fine of Rs. 1,000 or in default to suffer rigorous imprison ment for one year. The learned Sessions Judge, Sialkot upheld this conviction in appeal but reduced the sentence to Rs. 500 or in default rigorous imprisonment for six months. The petitioner went up in revision to the High Court but the High Court dismissed his revision petition. He now seeks special leave to appeal to this Court. The petitioner was charged for having committed mischief by raising a wall round a well which, it was alleged, was meant for irrigation purposes and thereby deprived the local Zamindars of their supply of water for agricultural purposes. The plea of the petitioner was that this well was situated inside a haveli which had been allotted to him as an evacuee property, and, as such, the local Zamindars had no right to draw any water from this well. In any event, whatever the petitioner had done was done in assertion of a bona fide claim of right and not with any wrongful motive of causing any loss or damage to any one. The Courts below on a consideration of the evidence have come to the conclusion that the haveli which the petitioner claims to be his own was before Independence used as a Sarai for the stay of Sadhus and the water of the well was also utilized by the public for drinking purposes. The finding was also to the effect that the well was not situated inside the haveli but was at some distance from it. The local Patwari and Girdawar testified that the water of the well was being used for irrigation purposes for a large number of years. This evidence was supported by a number of witnesses who claimed to have been doing so since 1947. In these circumstances the High Court took the view that: "even if there were no rights with regard to this well with the public before Partition, the fact stands that for 20 years, before this incident occurred, the fields of the prosecution witnesses were being irrigated by the water of this well and they had acquired a right to it by prescription of time." Learned counsel appearing in support of this petition contends that the findings of the Courts below are against the weight of evidence but he has not been able to substantiate this contention. There is abundant evidence on the record of the Patwari the Girdawar and the local residents to support the prosecution case. The finding arrived at on a consideration of the evidence could not, therefore, have been interfered with in revision by the High Court as it was in no way unreasonable. It is next contended that the High Court was wrong in taking the view that the villagers had acquired a prescriptive right under section 26 of the Limitation Act, for, there was no evidence that they had used the water openly and as of right without any interruption for 20 years. There is, however, no evidence to show that until the petitioner put up his boundary wall there was ever any interruption of this right or that the villagers were ever obstructed in the utilization of the water of the well. The contentions of the petitioner, therefore, are without any substance. This petition, is, accordingly dismissed. Petition dismissed.