PLJ 2024 Cr.C. (Note) 19
[Balochistan High Court, Quetta]
Present: Muhammad Aamir Nawaz Rana, J.
FATHER WARIS and another--Petitioners
versus
Sheikh MUHAMMAD ISLAM and another--Respondents
Crl. Misc. Quashment No. 405 of 2022, decided on 29.9.2022.
Illegal Dispossession Act, 2005 (XI of 2005)--
----S. 3--Prevention of illegal possession of property--It is obvious from Section 3 of Act that in order to attract penal provisions of Act of 2005, complainant must disclose existence of an unlawful act (actus reus) and criminal intent (mens rea); from perusal of record neither actus reus nor mens rea on part of petitioners have been found--The Respondent No. 1 himself was not sure about boundaries of his property, he, as per his own statement, embarked upon demarcation proceedings--The perusal of relevant report reveals that relevant rules of Land Revenue Act, 1967 were not followed which are necessary for demarcation or partition of any property--The bald allegation of Respondent No. 1 against petitioners in complaint to extent of 35 rod and 21 pol of property cannot be ignored as according to respondent’s subsequent stance, only 80 ft--Land has been alleged under possession of Christian Community--Learned counsel for petitioners has filed previous judgments and decree with regard to property in question and has further submitted that in fact property in question was earmarked for purpose of graveyard for Christian Community--From contents of plaint, necessary ingredients to attract penal provisions of Act of 2005 i.e. intention to disposes, grab control or occupy land in question are entirely missing and self-contradictory reports are being relied upon by Respondent No. 1--The trial Court has committed error by entertaining such complaint and by issuing notices to petitioners--The trial Court is not obliged on filing of any complaint, to direct police to investigate matter matter--The Christian Community of Quetta has general reputation of being patriotic, law-abiding and an educated community, so complaint filed against whole Christian, community is without any justification, particularly when absolutely no allegation against any individual of community was levelled; matter seems to be of demarcation of property for which competent forums are available.
[Para 7 & 8] A, B & D
Illegal Dispossession Act, 2005 (XI of 2005)--
----S. 5--Power of Court--Upon a complaint Court may direct police to investigate matter”--Section 5 of Act of 2005 is quite clear that “upon a complaint Court may direct police to investigate matter”--This enabling power of Court can only be exercised on basis of solid direct evidence emanating from contents of complaint--The power to direct an investigation u/S. 5 ibid is to be exercised judicially and not as unconsidered or mechanical action undertaken on every complaint filed under Act of 2005--The basic aim of directing an investigation on such complaint is not to add to allegations or grounds raised in a complaint, rather purpose of such investigation, if at all resorted to by trial Court, is to enquire into correctness of allegations made in complaint itself. [Para 7] C
Mr. Tariq Ali Tahir. Advocate for Petitioners.
Mr. Saad Salahuddin, Advocate for Respondent No. 1.
Mr. Fazal-ur-Rehman, State Counsel for State.
Date of hearing: 14.9.2022.
Judgment
Petitioners, being highly dissatisfied and aggrieved from the order dated 10.08.2022 (“impugned order”) passed by learned Additional Sessions Judge-VI, Quetta (“trial Court”) whereby their application under Section 265-K, Cr.P.C. was dismissed, have invoked the jurisdiction of this Court under Section 561-A, Cr.P.C.
2. Tersely; Respondent No. 1 had filed a complaint under Sections 3, 4 and 5 of the Illegal Dispossession Act, 2005 (hereinafter “the Act of 2005”) against the Christian Community through its elders. On receipt of complaint, the trial Court directed the SHO concerned to conduct inquiry and submit report. Thereafter, on the basis of inquiry report, vide order dated 25.02.2022, the trial Court took cognizance of the matter under the relevant provisions of the Act of 2005 and issued notices to the petitioners. The petitioners appeared before the trial Court and filed an application under Section 265-K, Cr.P.C. for their acquittal from the alleged charges. The said application was dismissed by the trial Court vide order dated 10.08.2022, which order has been impugned through this petition.
3. Learned counsel for the petitioners contented that the compliant against the Christian Community was not maintainable and the attorney of Respondent No. 1 had no authority to file the complaint under the relevant provisions of the Act of 2005, as neither he was owner nor occupier of the property in question. Learned counsel further contended that on the basis of power of attorney, the proceedings under the Act of 2005 could not have been initiated; there is no accusation against the petitioners that they had dispossessed the Respondent No. 1 in any manner and there is absolutely no allegation that the petitioners, in any manner, belong to land mafia or Qabza group, therefore the trial Court had wrongly entertained the complaint of Respondent No. 1 and without any justification took the cognizance of the same. In support of his contentions, learned counsel relied upon the cases titled as Habibullah v. Abdul Manan,[1] Muhammad Qasim v. Station House Officer, Police Station Khudabad, District Dadu,[2] Bashir Ahmed v. Additional Sessions Judge, Faisalabad[3] and Abdul Haque v. Mir Ahmed.[4]
While controverting the contentions of the opposite side, learned counsel for Respondent No. 1 submitted that since property of Respondent No. 1 is found to be in collective possession of petitioners and their community, therefore the trial Court had rightly assumed the jurisdiction; further stated that there is sufficient material available against the petitioners that they are in illegal possession of the property belonging to Respondent No. 1. Therefore the application under Section 265-K, Cr.P.C. was rightly dismissed by the trial Court; and the son of Respondent No. 1 having general power of attorney of his father had competently initiated the proceedings. In support of his contentions, learned counsel relied upon the cases titled as The State v. Azam Malik,[5] Sajid Javed v. Additional Sessions Judge (West) Islamabad,[6] Nasimullah v. Ijaz Hussain,[7] Khawaja Zulfiqar Ali v. The State,[8] The State v. Abdul Wadood,[9] and Zafar Mehmood Khokhar v. Dr. Muhammad Afzal.[10]
Arguments heard. Record perused.
4. The perusal of the complaint filed by the Respondent No. 1 under the Act of 2005 transpires that Respondent No. 1 had built his claim on the basis of Mutation No. 6318 having area of 42 rods 8-2/3 pol situated at Mahal Karkhasa Mouza Kirani Tappa Shadenzai-1 Tehsil City District Quetta, which property allegedly recorded in the name of Respondent No. 1 and as he, intends to launch there a Housing Society, therefore with the assistance of Revenue Department i.e. Tehsildar Bandobast got measured the property and carmarked the same physically with the help of map of Revenue Authorities, and during this process discovered through report of Revenue Authorities dated 25.08.2021 that the Christian Community are in illegal possession of 35 rod 21 pol of the property which exclusively belongs to Respondent No. 1 and further asserted that Christian Community may kindly be dispossessed from the said property measuring 35 rod 21 pol.
The trial Court directed the concerned SHO to file inquiry report regarding the allegations levelled by the Respondent No. 1/complainant and according to the report submitted by SHO, only 80 ft. are in the possession of Christian Community. Relevant to mention here that the inquiry report of SHO was based upon the report of concerned Revenue Staff (Halka Patwari), so there is huge difference of area of land alleged by Respondent No. 1 in his complaint i.e. 35 rod 21 pol and the report upon which now Respondent No. 1 is relying is i.e. 80 ft. (allegedly in the possession of petitioners).
5. In order to attract the provisions of the Act of 2005, the Respondent No. 1 had to mention the date and time when he was illegally dispossessed from the property in question but no detail in this regard has been furnished by Respondent No. 1 and even in the complaint, the basic allegation that the complainant was ever dispossessed from the property in question, is missing. Furthermore, how and when the Respondent No. 1 came into possession was also not explained in the petition considering the peculiar circumstances in which complete Christian Community has been involved; these material aspects should not have been ignored by the trial Court.
6. The preamble of Act of 2005 is relevant, same is reproduced.
“WHEREAS it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers.”
7. The moot question before this Court is, whether the trial Court had jurisdiction in the matter in view of attending circumstances of the case, so in this regard, Section 3 of the Act of 2005 is relevant which is reproduced herein below for convenience of reference:
3. Prevention of illegal possession of property, etc (1) No one shall enter into or upon any property to dispossess, grab. Control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.
(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 provisions of Section 544 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”
It is obvious from Section 3 ibid that in order to attract the penal provisions of the Act of 2005, the complainant must disclose the existence of an unlawful act (actus reus) and criminal intent (mens rea); from the perusal of record neither actus reus nor mens rea on the part of petitioners have been found. The Respondent No. 1 himself was not sure about the boundaries of his property, therefore he, as per his own statement, embarked upon demarcation proceedings. The perusal of relevant report reveals that the relevant rules of the Land Revenue Act, 1967 were not followed which are necessary for demarcation or partition of any property. The bald allegation of Respondent No. 1 against the petitioners in complaint to the extent of 35 rod and 21 pol of the property cannot be ignored as according to respondent’s subsequent stance, only 80 ft. land has been alleged under the possession of Christian Community. Learned counsel for the petitioners has filed previous judgments and decree with regard to property in question and has further submitted that in fact property in question was earmarked for the purpose of graveyard for the Christian Community. From the contents of complaint, the necessary ingredients to attract the penal provisions of the Act of 2005 i.e. intention to disposes, grab, control or occupy land in question are entirely missing and self-contradictory reports are being relied upon by Respondent No. 1. The trial Court has committed error by entertaining such complaint and by issuing notices to the petitioners. The trial Court is not obliged on the filing of any complaint, to direct the police to investigate the matter. Section 5 of the Act of 2005 is quite clear that “upon a complaint the Court may direct the police to investigate the matter”. This enabling power of the Court can only be exercised on the basis of solid direct evidence emanating from the contents of the complaint. The power to direct an investigation under Section 5 ibid is to be exercised judicially and not as unconsidered or mechanical action undertaken on every complaint filed under the Act of 2005. The basic aim of directing an investigation on such complaint is not to add to the allegations or grounds raised in a complaint, rather the purpose of such investigation, if at all resorted to by the trial Court, is to enquire into the correctness of allegations made in the complaint itself. In the present case, again at the cost of repetition, it is observed that the allegation levelled by Respondent No. 1 was to the extent of 35 rod and 21 pol which was proven false by the report procured by the trial Court, thereafter instead of dismissing the complaint, it seems that the trial Court assumed the duty of demarcating the property of Respondent No. 1 allegedly meant for Housing Society; which exercise is strongly disapproved.
8. The Christian Community of Quetta has general reputation of being patriotic, law-abiding and an educated community, so the complaint filed against the whole Christian community is without any justification, particularly when absolutely no allegation against any individual of the community was levelled; the matter seems to be of demarcation of property for which competent forums are available.
For the above reasons, Criminal Miscellaneous Quashment Petition No. 405/2022 is accepted. The impugned order dated 10.08.2022 passed by learned Additional Sessions Judge-VI, Quetta is set aside. The application filed by the petitioners under Section 265-K, Cr.P.C. is accepted and as a consequence, the complaint filed by Respondent No. 1 under the Act of 2005 is dismissed. Needless to observe that Respondent No. 1 is at liberty to approach the relevant forums for redressal of his grievance, if any.
(AAK) Petition accepted
0 Comments