PLJ 2022 Cr.C. (Note) 32
Illegal Dispossession Act, 2005 (XI of 2005)--
----Ss. 8 (2 &3) & 3--Delivery of possession of property to owner etc.--Restoration of possession--It is manifest from Section 8 read with sub-Sections (2) and (3) of Section 3 of Act that Court in case of conviction of accused can pass order for restoration of property but in present case trial Court, after recording evidence in case, has acquitted accused on one hand and on other hand has ordered for restoration of possession of land to complainant--In other words, conviction is sine qua non for handing over possession u/S. 8 of ibid Act--Thus, findings of trial Court are not in consonance with above referred provisions of Act as well as Section 367, Cr.P.C. requiring Court to give specific findings for determination of a criminal controversy--So, judgment of trial Court, being illegal, is liable to be set aside. [Para 6] A
Mr. Masood-ur-Rehman, Advocate for Appellants.
Mr. Muhammad Nabi, Advocate for Respondent.
Mr. Asad-ur-Rehman, Advocate as Amicus curie.
Date on hearing: 10.9.2020.
PLJ 2022 Cr.C. (Note) 32
[Peshawar High Court, Mingora Bench]
Present: Ishtiaq Ibrahim, J.
Syed ZANON MIAN and 4 others--Appellants
versus
Mst. MISSLUNISA--Respondent
Crl. A. No. 229-M of 2019, decided on 10.9.2020.
Judgment
Through this appeal, the appellants have challenged the judgment dated 04.05.2019 of the learned Additional Sessions Judge, Swat at Matta whereby though they were acquitted in complaint under Section of the Illegal Dispossession Act, 2005 filed by respondent/ Complainant Mst. Misslunisa but they were ordered to restore possession of her shari share.
2. Brief facts of the case are that the respondent/complainant filed a complaint under Section 3 of the Illegal Dispossession Act, 2005 (the Act henceforth) against the present appellants, with assertions that she and appellants No. 1 to 3 are successors of common predecessor namely Manjawar Mian. On the death of the said predecessor, his property devolved upon his legal heirs including the complainant whose name was duly entered in the revenue record. In order to grab her shari share, appellants No. 1 to 3 and father of appellant No. 4 filed a civil suit against her which was dismissed till the august Supreme Court of Pakistan. Thereafter, the complainant separated her shari share through revenue Court and possession thereof was handed over to her in accordance with law which she retained since 18.03.2016 till 10:00 A.M of 21.03.2016. The complainant alleged in her complaint that on 21.03.2016 at 10: A.M when she along with her husband Mian Sher and witnesses Momin Khan and Abdur Rauf visited her landed property, they found appellant Syed Zanon armed with Kalashnikov whereas appellants No. 2 to 4 were holding mattocks and they were demolishing the boundary line of her land established by revenue Court. When they tried to stop the accused, the latter abused them and threatened them for life in case of not vacating the land. Thereafter, they demolished the intervening boundary line and illegally took into possession her shari share by merging the same into their property. The occurrence was stated to have been witnessed by the aforesaid witnesses accompanying the complainant and her husband at the relevant time.
3. The trial Court sought report of the local police in the matter, on receipt of which formal charge was framed against the appellants to which they did not plead guilty. Prosecution produced six witnesses in support of-its case whereafter the appellants were examined under Sectoin 342, Cr.P.C. but they professed innocence though they neither recorded their statements on oath nor opted to produce any witness in their defence. On conclusion of trial, the learned trial Court acquitted the appellants through the impugned judgment, however, directed that possession of the land be restored to complainant. Hence, this appeal.
4. Arguments heard and record of the case was perused.
5. The learned trial Court has observed in the impugned judgment that:
“.... Therefore, the property to the extent of shari share of complainant, shall be restored to the complainant in terms of Section 8 of the Illegal Dispossession Act, 2005, through Tehsildar, Girdawar Circle, Patwari concerned along with SHO P.S Kalakot. In case of any hurdle, resistance either by accused or any other person on their behalf, the officer-in-charge (SHO) of the police Station Kalakot is directed to provide assistance as necessary for restoration of the possession of the property to complainant. Counsel of the complainant stated at the bar during arguments that if possession of the disputed property was restored to the complainant then complainant has no objection on the acquittal of accused because of relationship as sister and brothers inter se. Therefore the accused are acquitted of the charge leveled against them….”
The learned trial Court has passed the order for restoration of possession of the land to complainant in terms of Section 8 of the Act, therefore, it would be appropriate to reproduce the said section for ready reference.
8. Delivery of possession of property (1) On conclusion of trial, if the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of Section 3, the Court may, at the time of passing order under sub-sections (2) and (3) of that section, direct the accused or any person claiming through him for restoration of the possession of the property to the owner or, as the case may be, the occupier, if not already restored to him under Section 7.
(2) For the purpose of sub-section (1), the Court may, where it is required, direct the officer-in-charge of the police station for such assistance as may be required for restoration of the possession of the property to the owner or, as the case may be, the occupier.
Sub-Sections (2) and (3) of Section 3 of the Act referred to in Section 8(1) above reads as under:
(2) Whoever contravenes the provisions of the sub-section (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of Section 544-A of the Code.
(3) Whoever forcibly and wrongfully dispossesses any owner or occupier of any property and his act does not fall within sub-section (1), shall be punished with imprisonment which may extend to three years or with fine or with both, in addition to any other punishment to which he may be liable under any other law for the time being in force. The person dispossessed shall also be compensated in accordance with provisions of Section 544-A of the Code.
6. It is manifest from Section 8 read with sub-sections (2) and (3) of Section 3 of the Act that the Court in case of conviction of the accused can pass the order for restoration of the property but in the present case the learned trial Court, after recording evidence in the case, has acquitted the accused on one hand and on the other hand has ordered for restoration of possession of the land to complainant. In other words, conviction is sine qua non for handing over the possession under Section 8 of the ibid Act. Thus, findings of the learned trial Court are not in consonance with the above referred provisions of the Act as well as Section 367, Cr.P.C. requiring the Court to give specific findings for determination of a criminal controversy. So, the judgment of the learned trial Court, being illegal, is liable to be set aside.
7. When the learned counsel for the appellants, the learned A.A.G. and the learned Amicus Curie were confronted with the situation, they all agreed that remand of the case to trial Court has become imperative in the circumstances. Resultantly, this appeal is allowed, the impugned judgment is set aside and the case is remanded to learned trial Court with directions to hear the parties and thereafter pass an appropriate judgment strictly in accordance with law, without being influenced from its earlier order or by this order. The parties are directed to appear before the trial Court on 21.09.2020 and thereafter the learned trial Court shall do the needful within one month positively. Office shall send record of the case forthwith to trial Court.
(A.A.K.) Appeal allowed
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