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