IN THE COURT OF MUHAMMAD FAROOQ AHMAD

JUDL.MAGISTRATE IST CLASS, CHISHTIAN

The State Vs. Manzoor Ahmad

Case FIR No.342/2018.

U/S:73-A Canal & Drainage (Amended) Act 2016
P.S.Bakhshan Khan Chishtian.
Date of Decision: 05.9.2020

05.9.2020.
Present: Accused namelyManzoor Ahmad on bail.
Mr.Muhammad Nawaz Bhatti Advocate, learned counsel for
the accused.
Learned ADPP for the State.

JUDGMENT:

The accused person namely Manzoor Ahmad s/o Peer

Bakhsh has been sent to this Court for facing trial in case FIR
No.342/2019, U/S 73-A Canal and Drainage (Amended) Act 2016
registered at Police StationBakhshan Khan Chishtian.
2. Precisely, facts gleaning out of FIR are that on 13.7.2018, in
the area falling within the territorial jurisdiction of P.S. Bakhshan Khan
Chishtian, accused person caused damage to public canal, hence he has
committed offence U/s:73-A Canal & Drainage Amended Act 2016, (as
detailed in the FIR).Hence, this case.
3. After investigation, complete Challan was submitted before
Court while placing the name of accused person in column No.3. Copies of
requisite documents U/S 241-A, Cr.P.C were delivered to the accused
person and formal charge was framed against him to which he pleaded not
guilty and claimed for trial. Therefore, prosecution was directed to
produce its complete evidence. The prosecution produced following
evidence i.e.:-

PROSECUTION’S ORAL EVIDENCE:-

 PW.1 Riaz AhmadSDO (Complainant)

 Pw-2 Muhammad Aslam Baildar (alleged witness)
 PW-3 Muhammad Mujahid Sub Engineer
 Pw-4Abdul Qadir Khan ASI (I.O)
The prosecution tendered the following documentary evidence:-

PROSECUTION’S DOCUMENTARY EVIDENCE:-

 Exh.PA Written complaint.

2 CASE FIR No.342/2018 U/s 73-A of Canal & Drainage Act
Police Station: Bakshan Khan

 Exh.PB FIR No.342/2018, U/S 73 Canal & Drainage

(Amended) Act 2016.
 Exh-PC Un-scaled site plan.

GIST OF EVIDENCE OF PROSECUTION WITNESSES IS

AS UNDER:-

Pw-1 alleged complainant reiterated facts as contained in

written complaint Exh-PA, while during cross examination he deposed
that he did not witness the occurrence. He further admitted that he
nominated the accused on the report of Patwari and Zaildar and after that
he sent complaint without inquiry. He further admitted that he was not
present at the place of occurrence when police visited the same. He never
investigated the case regarding the occurrence from the people of locality
of the place of occurrence.
Muhammad Aslam Baildar eye witness as Pw-2
reiterated facts as contained in written complaint Exh-PA, while during
cross examination he deposed that he did not witness the occurrence; He
showed ignorance as to who made cut in the Moga (outlet); He further
deposed that the police did not visit the place of occurrence on 13.7.2018.
PW-3 Muhammad Mujahid Sub Engineer Canal Division
reiterated facts as contained in written complaint Exh-PA, while during
cross examination he deposed that he did not witness the occurrence, he
showed ignorance as to who made cut in the Moga (outlet); he further
deposed that the police did not visit the place of occurrence on 13.7.2018.
He showed ignorance about the cut which was allegedly made in the Moga
(outlet). Further admitted that all the procedure was adopted in his office.
Pw-4Abdul Qadir Khan ASI/I.O reiterated facts as
contained in written complaint Exh-PA, while during cross examination he
admitted correct that in Exh.P-B time of alleged occurrence is not
mentioned. Admitted correct that accused was not nominated at the spot.
Admitted that accused was nominated in the case after registration of
FIR..
4. After closure of prosecution evidence, the statement of
accused person was recorded U/s 342, Cr.P.C and all the incriminating
material available on record has been put to accused person wherein he
refuted all the leveled allegations and evidence and claimed his innocence.
In reply of question that why this case has been registered against him, he
deposed that he has falsely been implicated in this case by the
complainant. The police registered this case against him to show progress
and witnesses are police officials and subordinate of complainant due to
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Police Station: Bakshan Khan

that reason they deposed falsely against him. During statement of accused
person U/S 342, Cr.P.C he was asked whether he want to appear as his
own witness U/S 340 (2), Cr.P.C as well as to produce defense evidence,
but he did not opt.
5. Learned ADPP for the State argued that accused person is
nominated in FIR. He further argued that statements of witnesses U/S 161,
Cr.P.C also corroborated the prosecution version. He further argued that
there is no malafide on part of the prosecution. He stated that oral as well
as documentary evidence is in line and prayed for conviction of the
accused being guilt.
6. Learned counsel of the accused person argued that
complainant is a public servant and he just to show progress to his higher
authorities registered this false case against him; that accused person is
innocent and no such occurrence has been happened; that there are many
dents in prosecution evidence. Prosecution has failed to prove its case
beyond any shadow of doubt. Lastly, he prayed for acquittal of accused.
7. Arguments heard, record perused.

8. To prove its case prosecution produced foregoing oral as well

as documentary evidence.
9. According to prosecution story, on 13.7.2018, in the area
falling within the territorial jurisdiction of P.S. Bakhshan Khan Chishtian,
accused person caused damage to public canal, hence he has committed
offence U/s:73-A Canal & Drainage Amended Act 2016, (as detailed in the
FIR). Hence, this case.
10. According to contents of written complaint Exh-PA it has
been alleged that accused person has made violation of provision of ibid
ordinance. Complainant as Pw-1deposed that on 13.7.2018 he prepared
written complaint Exh-PA on the report/TaarNo.149 of sub engineer and
he forwarded the same to SHO concerned Police Station Bakhshan Khan.
While during cross-examination complainant (PW-1) stated that he did
not witness the occurrence. He did not collect any evidence from the
locality.
11. PW-2 alleged eye witness deposed that on 14.7.2018 he alongwith
complainant (PW-1) and Muhammad Mujahid Sub Engineer (PW-3)
visited the place of occurrence, whereas in cross examination this witness
admitted that he alongwith sub Engineer visited the place of occurrence on
13.7.2020. He admitted that he cannot say as to who made cut in the Moga
(outlet). PW-2 further admitted that he did not witness the occurrence. He
further admitted that police did not record his statement u/s 161 Cr.P.C.
Written complaint Exh-PA has been drafted on the basis of report/Taar of
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Police Station: Bakshan Khan

sub engineer. SDO Riaz Ahmad (PW-1) stated that he verified the
occurrence vide Tar No.154 dated 14.7.2018, whereas said PW in cross
examination admitted that he nominated the accused on the report of
Patwari and Zaildar after that he sent complaint without inquiry. PW-1 in
cross examination admitted that he does not remember as to how many
Patti Daran cultivated the land through Moga No.63620/L. further
admitted that he has no record of Patti Daran of Moga No.63620 with him
at that time. He further admitted that the report of Zaildar is not attached
with the complaint. He admitted that he did not record statement of any
person at the place of occurrence. PW-3 in cross examination admitted
that he did not accompany the complainant in order to visit the place of
occurrence, whereas PW-1 in cross examination stated that he visited the
place of occurrence alongwith his field staff. PW-4 I.O deposed about
investigation conducted by him. Whereas, in cross examination he
admitted that in FIR Exh.PB no time of occurrence is mentioned. He
further admitted that accused was nominated in this case after lodging of
FIR.
12. Prosecution evidence shows that accused person was not
arrested by the police party at the place of occurrence at spot. From the
face of record it appears that alleged place of occurrence is situated in
open area & thickly populated area but no local person of locality has been
associated with these proceedings by complainant as well as I.O but even,
no requisite efforts have been made by the I.O in pursuance of provision
U/S 103, Cr.P.C. No cogent explanation for non compliance of provision of
law would cast doubt. Prosecution has failed to explain as to why witnesses
from the public were not associated with alleged proceedings. These
factums also renders prosecution story cynical. It is also evident that
nether ‘Warabandi’ record of alleged outlet in question has been furnished
by the complainant nor I.O has been collected this material evidence. It
has been alleged by the prosecution that complainant Pw-1 drafted written
complaint Exh-PA on Taar/report No.149dated 13.7.2018 of sub engineer.

13. It is also worth mentioning here that occurrence has been

shown committed on 13.7.2018 whereas FIR was lodged on 31.12.2018.Un-
explained delay on the part of sub engineer as well as on the part of SDO
(complainant) has not been explained/justified by the
prosecution/complainant whereas Pw-1 complainant deposed contrary
that he drafted the written complaint Exh-PA on 14.7.2018 and on the
same day he forwarded the same to police. Written complaint Exh-PA
drafted by complainant showed that matter was reported to SDO in August
2018. Allegedly occurrence was shown committed on 13.7.2018and matter
5 CASE FIR No.342/2018 U/s 73-A of Canal & Drainage Act
Police Station: Bakshan Khan

was reported to police on 31.12.2018 and on the same date IO inspected

the place of occurrence and drafted rough site plan Exh-PC. Rough site
plan Exh-PC crystalline that point No.01 has been shown (broken outlet)
whereas point No.02 has been shown where at alleged relevant time
witnesses were present who witnessed the occurrence. Pw-2 alleged ocular
witness admitted that he did not witness the occurrence at relevant time.
Admittedly he is not ocular witness of alleged occurrence. It also does not
appeal to prudent mind that almost after five month how broken outlet
was functioning. Meaning thereby that on 31.12.2018 at the time of
inspection by the I.O alongwith complainant and witness out let in
question was not broken. It is prime obligation/duty of concern
department (complainant party) after founding any breach of outlet
immediately repair the outlet/replace the machine of outlet. From the
contents of written complaint as well as FIR and from the prosecution
evidence it reveals that no specific manner of alleged breach of outlet has
been stated by prosecution. It is also not out of place to mention here that
prosecution also did not describe/furnish source upon which alleged sub
engineer made alleged Wire No.149.No source has been furnished due to
which sub engineer knew about the occurrence.
14. In view of above discussed evidence and facts it is proved
that complainant P-W1, alleged eye witness Pw-2 and Pw-3 are not in-line
regarding material aspects of the instant case. They are contradictory with
each other on material aspects of the case. In view of contents of written
complaint as well as FIR and statements of witnesses U/s: 161 Cr.P.C,
prosecution witnesses made improvements regarding very material
aspects of its case. It is also pertinent to mention here that complainant as
well as alleged witness Pw-2 admitted that they do not saw the occurrence.
These factum also renders whole prosecution evidence doubtful. During
cross-examination, defense successfully shattered credibility of
prosecution witness.
15. Admittedly, no witness himself witnessed the occurrence
while accused person breaking the outlet (moga) in question. Even, no
requisite evidence has been collected by the concerned I.O whether
accused person was present at the time of alleged occurrence at the spot or
not. To support such allegations, investigation officer remained failed to
collect material with respect to break the (outlet) Moga and use of
excessive water by accused person. In the case in hand, no such exercise
has been done. No independent person of the locality has been associated
by the police. It is evident from the record that provided procedure has not
been adopted by the police.
6 CASE FIR No.342/2018 U/s 73-A of Canal & Drainage Act
Police Station: Bakshan Khan

16. Prosecution evidence shows that no Roznamcha entry has

been produced in the evidence by the prosecution to prove that police in
fact had proceeded to the venue to conducted alleged proceedings. Such
lapse on the prosecution had cut at the roots of its case rendering the
entire episode doubtful. In this regard, reliance can be placed on 2002
P.Cr.L.J 51.
17. Likewise, alleged occurrence place has been shown in a
thickly populated area while provisions of section 103 Cr.P.C being
mandatory unless shown not possible to have two mashirs from public
may make the recovery doubtful. Even, no requisite efforts have been
made by the I.O in pursuance of provision U/S 103 Cr.P.C. No cogent
explanation for non compliance of provision of law would cast doubt on
recovery. Prosecution has failed to explain as to why witnesses from the
public not associated with this alleged recovery proceedings. This factum
also renders prosecution story cynical.It is also proved that complainant as
well as alleged witness is not eye witness of alleged occurrence.
18. In view of available evidence and record, all the prosecution
story is based on oral assertions. No doubt minor contradictions or
improvements in the statements of witnesses to be overlooked and only
material contradictions to be considered but in said case there are major
and glaring contradictions, dents as well as improvements in oral as well
as in documentary evidence.

19. For the reasons mentioned above, I am satisfied that the

prosecution has miserably failed in its duty to prove guilt of the accused
beyond reasonable shadow of doubt and the benefit of doubt always
extended in favour of the accused.

“Needless to mention that while giving the benefit of

doubt to an accused, it is not necessary that there
should be many circumstances creating doubt. If there
is a circumstance which creates reasonable doubt in a
prudent mind about the guilty of the accused, then the
accused would be entitled to the benefit of such doubt,
not as a matter of grace and concession, but as a
matter of right. It is based on the maxim, “it is better
that ten guilty persons acquitted rather than one
innocent person convicted”. Reliance in this behalf
can be made upon the cases of Tariq Pervez v. The
State (1995 SCMR 1345), Ghulam Qadir and 2 others
v. The State (2008 SCMR 1221), Muhammad Akram
v. The State (2009 SCMR 230) and Muhammad
Zaman v. The State (2014 SCMR 749)”

20. Keeping in view of above discussed prosecution evidence,

facts and circumstances of the case, by extending benefit of doubt, the
7 CASE FIR No.342/2018 U/s 73-A of Canal & Drainage Act
Police Station: Bakshan Khan

accused person namely Manzoor Ahmad s/o Peer Bakhsh is hereby

acquitted from above leveled charge. Accused is on bail, his surety stands
discharged. Case property, if any, be disposed of after the expiry period of
appeal or revision. File be consigned to the record room after its due
completion.

Announced:
05.9.2020. Muhammad Farooq Ahmad
Judl.Magistrate 1st Class,
Chishtian
It is certified that this judgment consists of seven (07) pages,
each page has been dictated, read over, corrected and signed by me.

Dated: 05.9.2020. Judl.Magistrate Ist Class,

Chishtian