2017 M L D 1143
[Balochistan]
Before Jamal Khan Mandokhail and Zaheer -ud-Din Kakar, JJ
KHUDAI DAD and 2 others ---Petitioners
Versus
RAHIMUDDIN and 6 others ---Respondents
Crl. Acq. Appeal No.126 of 2012, decided on13th March, 2017.
(a) Illegal Dispossession Act (XI of 2005) ---
----Preamble, Ss. 4 & 5(2) ---Purpose and scope of Illegal Dispossession Act, 2005--- Illegal
Dispossession Act, 2005 was a special legislation to protect the lawful owners and occupiers of
immovable property from their ille gal and forcible dispossession therefrom by the property
grabbers ---Object and spirit of the legislation was to curb the activities of land grabbers.
(b) Illegal Dispossession Act (XI of 2005) ---
----Ss. 3 & 4--- Illegal possession of property ---Complaint and civil suit ---Maintainability ---Trial
Court dismissed the complaint on the ground that civil litigation was already pending between
the parties regarding same property ---Validity ---Facts of the case showed that the version of the
parties about ownership of the disputed land was at variance regarding which civil litigation was
already pending involving the title of the land ---Admittedly, parties were co -sharers of the land
in question being legal heirs of the original owner of the land---Claim of the petitioners was that
respondents had occupied 50,000 sq. ft. of the land forcibly by constructing a wall ---Record
showed that petitioners had filed civil suit against the respondents for the same relief of
possession of 50,000 sq ft, which they sought in the c omplaint ---Circumstances of the case
showed that an attempt had been made by the petitioners to convert a civil dispute between the
parties into a criminal case, which was rightly struck down being abuse of process of law by the
Trial Court ---Civil dispute could not be allowed to be converted into criminal case for
implicating co -sharers of the land in question as this would be misuse of the provisions of the
Act---Civil court was a competent forum to resolve the said issues after recording evidence ---
Appea l was dismissed.
Bashir Ahmed v. Additional Sessions Judge, Faisalabad and others PLD 2010 SC 661 rel.
Muhammad Riaz Ahmed for Appellants.
Bahadur Khan Marwat for Respondents Nos.1 to 5.
Ameer Hamza Mengal, D.P.G. for the State.
Date of hearing: 7th March, 2017.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---This Criminal Acquittal Appeal has been presented
against the Order dated 18th May 2012 "the impugned order", passed by the Additional Sessions
Judge, Killa Abdullah at Chaman "the trial Court", whereby the complaint under sections 3, 4 of
the Illegal Dispossession Act, 2005, filed by the appellants was dismissed.
2. Precisely stated facts of the case are that the appellants/ complainants have filed a
complaint under sections 3 and 4 of the Illegal Dispossess ion Act, 2005 "The Act of 2005"
before the Court of Additional Sessions Judge, Killa Abdullah at Chaman with the following
prayer: --
"It is therefore, prayed that in consideration of above stated facts and circumstances of
the case, this Hon'ble Court may be pleased to direct the Tehsildar concerned or SHO
P.S. Chaman to make probe and investigate the matter within the meaning of Section 5 of
the Act in respect of disputed property bearing Khasra Nos. 1181 to 1184, 1186 to 1188,
1190 Khewat/khatooni No. 149 Mahal Mouza Murda Karaz, Tappa Saddar, Tehsil
Chaman District Killa Abdullah."
3. The trial Court sent the complaint to Tehsildar concerned for inquiry report and he
submitted his report on 8.5.2012. After hearing of arguments, the trial Court vide impugned
order dated 18.3.2012 dismissed the complaint with directions to the appellant to approach civil
court for redressal of their grievances, hence the instant appeal.
4. Learned counsel for the appellants contended that the revenue authorities i.e. Tehsildar
Chaman submitted his report vide letters dated 2.5.2012 and 8.5.2012 before the Additional
Sessions Judge, Killa Abdullah at Chaman wherein it has been mentioned that the respondents
have illegally and unlawfully constructed wall measuring 280 feet in l ength and 5 feet in height;
that the Additional Sessions Judge, vide order dated 18.5.2012 dismissed the complaint on the
ground that there is a civil dispute between the parties, thus, he has got no jurisdiction to
entertain the matter, as such, the same was dismissed, which is contrary to law and facts of the
case, as such, the order impugned is liable to be set aside.
5. On the other hand, learned counsel for private respondents opposed the appeal and
defended the impugned order by stating that the trial Court rightly held that the disputes between
the parties are civil in nature and the parties were rightly directed to approach the civil Court for
redressal of their grievances.
6. We have heard learned counsel for the parties and have gone through the re cord
available.
7. At the outset, it is pertinent to mention that Illegal Dispossession Act, 2005 is a special
legislation to protect the lawful owners and occupiers of immoveable property from their illegal
or forcible dispossession there from by the property grabbers. It w ill be expedient to reproduce
the provision of section 3 of the Act for ready reference.
"3. Prevention of illgal possession of property, etc .---(1) No one shall enter into or
upon any property dispossess, grab, control or upon 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 subsection (1) shall, without prejudice to
any punishment to which he may be l iable 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 offence shall be compensated in accordance with the provisions of section
544 of the Code."
8. The object a nd spirit of legislation of illegal Dispossession Act, 2005 is to curb the
activities of the property grabber. Preamble of the Act manifests that it aims to protect the lawful
owners and occupiers of immovable properties from the illegal or forcible dispos session by the
property grabbers. In the instant case, there is no denial to this fact that the version of the parties
qua ownership of the disputed land is at variance regarding which civil litigation is already
pending involving the title of the land. Admittedly, the parties are legal heirs of late Nazar
Muhammad alias Nazar Ali, who died leaving behind landed properties bearing Khasra
Nos.1181 to 1184, 1186 to 1188 and 1190 situated at Mahal and Mouza Murda Karez, Tappa
Saddar, Tehsil Chaman and the part ies are co -sharer of the land in question. Perusal of the record
shows that in the year 1998, the appellants filed a suit for declaration, partition, injunction and
rendition of accounts as well as mesne profit before the Court of Senior Civil Judge, Pishi n,
against the respondents and during pendency of the suit, the appellants filed an application under
Order VIII Rule 10, C.P.C., which was accepted vide order and decree dated 30.5.1998. Now the
claim of the appellants are that the respondents occupied 50000 Sq:Ft: of the partitioned land,
forcibly by constructing a wall. During the course of arguments, learned counsel for the
respondents pointed out that after passing the impugned order by the trial Court the appellants
filed a suit for declaration, posse ssion and injunction afore the Court of Senior Civil Judge,
Chaman against the respondents regarding disputed land which is still pending before the said
Court. The learned counsel has placed on record a copy of the plaint and written statement. A
bare per usal of the prayer clause of plaint clearly shows that the appellants prayed for the same
relief (possession of 50000 Sq.Ft.) in Khasra No.1181 to 1184, 1186 to 1188 and 1190 situated in
Mahal Tappa Saddar, Murda Karez Tehsil Chaman, which he also sought i n the complaint.
9. In our view, through filing of complaint under Sections 3 and 4 of the Act of 2005, an
attempt has been made by the appellants to covert a civil dispute between the parties into a
criminal case, which was rightly struck down being abuse of process of law by the trial Court. In
this context, we refer the case of Bashir Ahmed v. Additional Sessions Judge, Faisalabad and 4
others PLD 2010 SC 661, wherein the Hon'ble Apex Court has observed as under: --
"It had been held by a Full Bench of the Lahore High Court, Lahore in the case of Zahoor
Ahmed and 5 others v. The State and 3 others PLD 2007 Lah. 231 that the Illegal
Dispossession Act, 2005 has no application to cases of dispossession between co -owners
and co -sharers and also that the said A ct is not relevant to bona fide civil disputes which
are already sub judice before civil or revenue Courts. It had also been declared by the
Full Bench of the Lahore High Court, Lahore in that case that the Illegal Dispossession
Act, 2005 was introduced in order to curb the activities of Qabza groups/property
grabbers and land mafia. It has been conceded before us by the learned counsel for the
petitioner that no material is available with the petitioner to establish that respondents
Nos.2 to 4 belonged to any Qabza group or land mafia or that they had the credentials or
antecedents of being property grabbers ----In the circumstances of this case mentioned
above we have entertained an irresistible impression that through filing of his complaint
under the Ille gal Dispossession Act 2005 the petitioner had tried to transform a bona fide
civil dispute between the parties into a criminal case so as to bring the weight of criminal
law and process to bear upon respondents Nos.2 to 4 in order to extract concession from
them. Such utilizations of the criminal law and process by the petitioner has been found
by us to be an abuse of the process of law which cannot be allowed to be perpetuated."
10. For what has been discussed above, we hold that a civil dispute cannot be allowed to be
converted into a criminal case for implicating co -sharers of the land in question as this would be
misuse of the provisions of the Act of 2005, because regarding the civil disputes or the dispute
amongst the co -sharers, the civil Court is a c ompetent forum to resolve the said issue, after
recording of evidence. Therefore, the learned trial Court has rightly dismissed the complaint vide
impugned order, which is not perverse and arbitrary.
11. Resultantly, we find no merit in this appeal, which is hereby dismissed.
JK/27/Bal Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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