2022 M L D 630
[Balochistan]
Before Abdullah Baloch, J
EID MUHAMMAD--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.57 of 2019, decided on 27th July, 2020.
(a) Illegal Dispossession Act (XI of 2005) ---
----Ss.3 & 4--- Prevention of illegal dispossession of property--- Cognizance of offence---
Accused not belonging to qabza mafia ---Dispute of civil nature ---Scope ---Accused was
alleged to have illegally dispossessed the complainant from his land and started cultivation
thereon ---Complain ant had not alleged that the accused belonged to qabza Mafia or he was a
land grabber ---Contents of the complaint were silent to the effect that why the complainant
had kept mum for a period of four years after his illegal dispossession--- Mode of
disposses sion was also not mentioned in the complaint ---Long standing possession of
accused was enough to hold that the accused did not belong to the class of property grabbers or qabza group---No case under S.3 of Illegal Dispossession Act, 2005, was made out rather
it appeared that the matter between the parties pertained to a dispute of civil nature ---Appeal
against conviction was accepted, in circumstances.
Amroze Khan v. Motaser Khan and others 2013 MLD 1564 rel.
(b) Illegal Dispossession Act (XI of 2005
)---
----Ss.3 & 4--- Prevention of illegal dispossession of property--- Cognizance of offence---
Scope ---Main object and purpose of promulgation of the Illegal Dispossession Act, 2005, is
to curb the activities of the property grabbers ---Illegal Dispossession Act, 2005, applies only
to dispossession from immovable properties by property grabbers/land mafia ---Illegal
Dispossession Act, 2005, does not apply to the cases of dispossession by ordinary persons
who cannot, by any stretch of imagination, be termed as land grabbers/land mafia/qabza
group--- Such disputes include disputes over possession of immovable properties between co-
owners or co- shares, between landlord and tenants, between persons claiming possession on
the basis of inheritance, between persons claiming to be the owners of the land on the basis
of title documents in their favour or cases with a background of an ongoing private dispute
over the relevant property.
Amroze Khan v. Motaser Khan and others 2013 MLD 1564 rel.
Abdul Wahab Buledi, Nisar Ahmed Alizai and Muhammad Naeem Khan Khilji for
Appellant.
Abdul Karim Malghani, State Counsel.
Date of hearing: 21st July, 2020.
JUDGMENT
ABDULLAH BALOCH, J .----This judgment disposes of Criminal Appeal No.57 of
2019 filed by the appellant Eid Muhammad son of Abdul Nabi, against the judgement dated
21st November 2019 (hereinafter referred as, "the impugned judgment") passed by learned Sessions Judge Mastung, (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under Section of Illegal Dispossession Act, 2005 ("Act of 2005") and
sentenced to suffer seven (07) years R.I. with fine of Rs.50000/ - (Rupees Fifty Thousand) or
in default thereof to further suffer two (02) months S.I. The appellant was also directed to pay Rs.200,000/ - as compensation under section 544 -A, Cr.P.C. to the complainant and in
default thereof, he was directed to undergo for six (06) months S.I. The possession of the property was directed to be restored to the complainant.
2. Facts of the case are that the p rivate respondent (Abdul Baqi) filed a complaint under
Sections 3 and 4 of the Act of 2005 before the learned trial Court against the appellant stating therein that he is lawful owner of land bearing Khewat No.04, Khatooni No.15, Khasra Nos.378, 379, 386, 387, 395, 396, 397, 413, 415, Qita -9, measuring total 45 Rods, 03
Polls, situated at Mouza Muhammad Waris Tapa Kanak Tehsil and District Mastung (hereinafter referred as, "the land in question"). It is further averred in the complaint that the land in ques tion is inherited property of the complainant (respondent No.1), which was
entered into his father's name in the first settlement during the year 1962- 64 and thereafter
the same was transferred in the name of complainant. However, four years back the appel lant
(accused) with mala fide intention to grab the land in question illegally dispossessed the complainant and took the illegal possession of land in question and started cultivation upon the land in question.
3. After filing of the complaint, report was sought from Tehsildar, Levies Thana Wali
Khan Mastung, which was accordingly submitted, whereafter the trial Court has taken the
cognizance of the matter, declared co -accused Ameen Ullah son of Eid Muhammad as
absconder and indicated the charge to the appe llant (accused), who denied the same and
claimed trial. During trial, the prosecution produced four witnesses. Whereafter, the
appellant was examined under Section 342, Cr.P.C. He also recorded his statement on oath
under Section 340(2), Cr.P.C. However, t he appellant (accused) has failed to produce any
witness in his defence. On conclusion of trial and after hearing arguments, the appellant was
convicted and sentenced as mentioned above in para No.1. Whereafter, the instant /appeal has been filed.
4. Heard the learned counsel for parties and perused the record with their valuable
assistance. The record reveals that the respondent No.1 (complainant) filed the complaint under Sections 3 and 4 of Illegal Dispossession Act, 2005, against the appellant and other s,
stating therein that the property in question is his inherited property being devolved upon him from his forefathers, but about four years ago the appellant and others illegally dispossessed him from the land in question and laid their forcible entrance in the property
with intention to grab the same. Record further reveals that aforesaid complaint was
contested by the appellant before the learned trial Court and after inquiry and submission of
report by the Tehsildar concerned, the learned trial Court t ook the cognizance of the matter
and commenced with the trial, which culminated into awarding sentence to the appellant.
5. It has been observed that the main object and purpose of promulgation of the Act of
2005 is to curb the activities of the property grabbers. Therefore, the Act applies only to dispossession from immovable properties by property grabbers/land mafia. However, the Act of 2005 does not apply to the alleged cases of dispossession by ordinary persons who cannot,
by any stretch of imagination, be termed as land grabbers/land mafia/Qabza Group. This includes cases of disputes over possession of immovable properties between co -owners or
co-sharers, between landlord and tenants, between persons claiming possession on the basis
of inheritance, bet ween persons claiming to be owners of the land on the basis of title
documents in their favour, or cases with a background of an on- going private dispute over
the relevant property. Perusal of entire record i eluding the complaint filed by the appellant transpires that the respondent No.1 (complainant) has even not alleged that the appellant
(accused) belonged to Qabza Mafia or he is a land grabber, but the trial Court has failed to consider this important aspect of the case and has wrongly taken cognizance of the matter.
The respondent No.1 (complainant) has failed to prove the charge against the appellant linking him with the Land Mafia or Qabza Group. The contents of complaint are also silent to the effect that as to why the respondent No.1 (complainant) kept mum for a long period of four years after his illegal dispossession from the property in question and did not file complaint or initiate any legal proceedings against the appellant before any competent forum. Non-approaching to any legal forum by the respondent No.1 (complainant) for redressal of
his grievance and keeping silence for four years is suggestive of the fact that there had existed any civil dispute in between the parties. Even otherwise, the mode of dispossession was also not mentioned in t he complaint coupled with long- standing possession of the
appellant (accused) are enough to hold that the appellant (accused) did not belong to class of property grabbers or Qabza group and that's why no such allegations have been leveled,
hence no case un der Section 3 of the Act of 2005 is made out rather it appears from the
record that the matter in between the parties pertains to a civil nature and could be decided
by a Civil Court of competent jurisdiction. Reliance in this regard is placed on the case of Amroze Khan v. Motaser Khan and others 2013 MLD 1564. The relevant portion reads as under:
"22. What transpires from the above discussion is that neither the respondents are members of some land mafia or Qabza group nor they have illegally dispossessed any
one from the disputed property. The Act, 2005 was specifically promulgated for curbing the illegal activities of the land mafia/Qabza Group/land grabbers and thus is only applicable to those cases where it is shown that the accused belong to any of the above category i.e. land mafia/Qabza Group/land grabbers and have illegally dispossessed someone to grab his property. The appellant has miserably failed to show that at any point of time he was put into physical possession of the disputed property from where he was dispossessed by the respondents. On the contrary, it has been established by cogent evidence that the respondents are living in the disputed property since 2007. Therefore, the provisions of the Illegal Dispossession Act, 2005 are not attracte d to the present case. It may be clarified that the Act, 2005 would come
to the rescue of not only the owner of an immovable property but also to the occupier of an immovable property. The dispute between the appellant, Bakht Begum on the one side and the respondents 1 to 5 on the other side clearly is a dispute of civil nature and the same has to be decided by a civil Court having jurisdiction."
6. In view of the above circumstances, the trial Court has wrongly taken the cognizance
of the matter and illega lly reached to a wrong conclusion by awarding conviction and
sentence to the appellant (accused). The impugned judgement suffers from illegalities and
irregularities as the dispute between the parties is of civil nature and does not falls within the purvie w of illegal Dispossession Act, 2005.
For the above reasons, the appeal is accepted. The impugned judgement dated
21st November 2019 passed by learned Sessions Judge Mastung, is set -aside and the
appellant (accused) Eid Muhammad son of Abdul Nabi is acqu itted of the charge. The
appellant is on bail; his bail bonds stands discharged after lapse of appeal period.
The parties are at liberty to approach the Civil Court of competent jurisdiction for
redressal of their grievance.
SA/164/Bal. Appeal allowed.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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