P (PLP)

Criminal Procedure Code (V of 1898), S. 439‑--Finding of lower Court is of binding nature except when finding is based on error of law or procedure, vitiating the finding or on a misapprehension of evidence. High Court acting in a revision under section 439 Criminal Procedure Code is, hound to accept the finding of the lower Court unless, there is any error of law or procedure vitiating that finding, or unless there are any special‑circumstances appearing on the record to show that in arriving at its conclusion of fact, the lower Court has misapprehended the evidence. 123 P. L.R. 1914, 34, Bom: 378, 8 P. R. 1900, 2 P. R. 1901, 8 P. R. 1909 and 30 P. W. R. 1908 referred to. ORDER.--‑One, Allah Rakha brought a complaint under section 430 read with section 506 Pakistan Penal Code against three persons Rahmat Ali, Ahmad Din and Noor Ahmad. This complaint was dismissed in the absence of the complainant on, 25th of July 1950. A fresh complaint was made on the same facts and in the same Court. The allegations in the complaint were that on 18th of May 1950 the plaintiff had to irrigate his land according; to his turn from 6 in the morning till 6 in the evening. The accused armed with deadly weapons reached his land at about midday arid with the show of force diverted the course of water to their own land and were thus guilty of the offences mentioned above. The accused denied the charge and pleaded that some days before this complaint they had brought a complaint against Allah Rakha and in retaliation he brought the present complaint against them. The trial Magistrate in a lengthy order considering the evidence of the complainant and the plea and the defence evidence of the respondent held that the complaint was false and acquitted the accused. They preferred a revision in the Court of the Additional District Magistrate Bahawalpur who in a brief order without discussing the facts and the evidence of the case dismissed the petition. This is a second petition before this Court. I have gone into the judgment of the trial Magistrate and the record of that case. It is a fact that the learned trial Magistrate had carefully considered and discussed the evidence of the complainant and of the accused and came to the conclusion that it was not proved as a fact that the accused did forcibly and unlawfully divert the course of water to which the complainant was entitled, to their own land on 18th of May 1.950. The Court also came to the conclusion that prior to the complaint of Allah Rakha the respondents had brought a com plaint against him and his complaint thus was not based on true facts but in a spirit of retaliation. It has been laid down more than once by the High Courts unanimously that the High Court acting in a revision under section 439 Criminal Procedure Code is bound to accept the finding of the lower Court unless there is any error of law or procedure vitiating that finding or unless there are any special circumstances appearing on the record to show that in arriving at its conclusion of fact, the lower Court has misapprehended the evidence. See 123 P. L. R. 1914 and 34 Born.

378. In 8 P. R. 190,0, 2 P. R. 1901, 8 P. R. 1909, it was laid down that where a Magistrate trying an accused person has dealt at considerable length with the evidence on the record and discharged the accused, recording what appear, to be sound reasons for the conclusion arrived at by him, the High Court will not interfere with such order in revision on the ground that the guilt of the accused is established by the evidence already recorded. In 30 P. W. R. 1908 it was observed that the High Court as a Court of revision does possess the power of upsetting a finding of fact by the lower Court on the ground of misappreciation of evidence. Such power, however, will not be exercised except for some very extraordinary reason. The cir cumstance that the Court itself might or would have come to a different conclusion is not such a reason. In view of this law and in view of the fact that in the present case the Magistrate had diligently considered the evidence of the prosecution, I am of opinion that it is a case in which interference is unwarranted. The petition is therefore dismissed. K. M. A Petition dismissed.