2010 P Cr. L J 666
[Quetta]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
Malik MUHAMMAD AKRAM ----Appellant
Versus
MUHAMMAD QAHIR and another ----Respondents
Criminal Acquittal Appeal No.68 of 2008, decided on 22nd February, 2010.
Illegal Dispossession Act (XI of 2005) ---
----S. 3---Criminal Procedure Code (V of 1898), S.417 ---Appeal agains t acquittal ---
Complaint filed by the appellant against the accused respondent had been dismissed by
Trial Court holding that "no direct evidence was available on record to show that the
accused, who was a tenant under the complainant appellant on the land in question, had
delivered possession of the same to the complainant" ---Validity ---Held, in civil litigation
between the parties all the Courts right from the Civil Judge upto the Supreme Court had
held that the possession of accused over the land in dispu te was illegal and that earlier the
possession of the land had been handed over to the complainant, but again occupying the
land by the accused amounted to illegal occupation with the view to grab the property
illegally without having any entitlement ---Com plainant through oral evidence comprising
of ten witnesses and the aforesaid judgments adduced in his complaint, had fully proved his
dispossession from the land by the accused ---Trial Court had not considered the verdicts of
competent Courts of law as wel l as evidence and material available on record, which
amounted to misappreciation and non -appreciation of evidence and the same' was an
illegality and irregularity ---Impugned judgment of acquittal was consequently set aside ---
Accused was convicted under S. 3 of the Illegal Dispossession Act, 2005, and sentenced to
one year's R.I. with a fine of Rs.10,000 or in default of payment of fine to suffer three
months S.I. further, in circumstances ---Police Authorities were directed to put the
complainant in possessi on of the land in question after dispossessing the accused therefrom
within a week ---Appeal was accepted accordingly.
Mujeeb Ahmed Hashmi for Appellant.
Kamran Murtaza for Respondent No.1.
Date of hearing: 16th November, 2009.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. --- This appeal has been filed under section 417,
Cr.P.C. against the judgment dated 18 -4-2008, passed by Additional Sessions Judge -I,
Quetta, whereby; complaint under section 3/4 of the Illegal Dispossession Act, 2005,
filed by the appe llant, has been dismissed and the respondent has been acquitted of the
charge.
2. Briefly stated facts of the case are that on 17 -12-2005, the appellant has filed a
complaint against respondent No.1 with the contention that, he is a recorded owner and
in possession of the land bearing Khasra Nos.870, 671, 877, Khewat/Khatooni No.1254/82,
measuring 9867 sq.ft. and the property having Khewat/Khatooni No.209/77, Khasra No.780,
measuring 2309 sq.ft., situated at Mohal and Mouza Ward No.28, Tappa Urban -II, Teh sil and
District Quetta.
It is alleged that initially the respondent was in possession of property as tenant, but later on,
in result of private settlement, he handed over possession of the same to appellant subject to
receiving an amount of Rs.200,000 t hrough cheque. According to appellant that on receiving
possession of the property in question, he started raising construction of building, but on 5 -
12-2005, respondent No.1 has illegally entered into the property of appellant for the purpose
of grabbing and occupying the same without having any lawful authority to do so, hence,
present complaint was filed.
It is important to mention here that when the appellant had filed the complaint, then, to
sabotage the same, respondent No.1 has filed a civil suit a gainst appellant in respect of above
stated property (property in question) in the said suit, respondent No.1, alleging therein that,
he is in possession of the same. He claimed that the defendant (present appellant) is trying to
illegally dispossess him, as such, he prayed to restrain him. The appellant has contested that
suit by saying that the plaintiff was his tenant in the said property, however, in view of
settlement, possession of the land in question has been handed over to appellant, subject to
payment of Rs.200,000.
On conclusion of case, suit of respondent No.1 was dismissed vide judgment and decree
dated 30 -8-2007. Feeling aggrieved from the same, respondent No.1 filed on appeal before
Additional District Judge -V, Quetta, which too was dismisse d on 19 -12-2007. Thereafter,
respondent No.1 preferred Revision Petition No.35 of 2008 before this Court, which also met
the same fate vide judgment dated 14 -5-2008.
Respondent No.1 did not satisfy from all the concurrent findings of three Courts includi ng
this Court and challenged the same before honourable Supreme Court of Pakistan through
Civil Petition No.61 -Q of 2008. The apex Court, while deciding the petition, the honourable
Supreme Court of Pakistan has held as under: ---
"(4) We have heard the l earned counsel for the parties at length and have also perused
the available record. The High Court and the Courts subordinate thereto have
recorded categorical findings that the dispute between the parties had been settled by
the head of their Kasi tribe and, as a consequence thereof, the petitioner, being a
tenant, received a sum of Rs.200,000 (two lacs) vide Cheques No.Exh.D/3 -A and
handed over the possession of the suit property to the respondents. The petitioner
failed to call in question the findings of the High Court and the Courts below
specifically on this aspect of the case in the memo of petition before this Court.
Ordinarily, we are not expected to substitute such findings in the absence of any
misreading or non -reading of evidence. The impugned judgment of the High Court is
plainly correct to which no exception can be taken.
(5) For the foregoing reasons, we do not find any merit in this petition, which is
dismissed and leave to appeal is refused accordingly."
It is pertinent to mention here that, during pendency of above stated suit, complaint was
dismissed and the appellant has preferred instant appeal to challenge the impugned judgment.
3. Learned counsel for the appellant has submitted that possession of appellant has been
proved through judgment and decree dated 30 -8-2007, passed by Civil Judge -II, Quetta,
which was confirmed by Additional Sessions Judge -II, Quetta, this Court, as well as, by
honourable Supreme Court of Pakistan.
According to him, once the respondent handed over posses sion of the property in question to
appellant, then, reoccupying the same amounts to illegal dispossession of appellant, therefore,
his action comes within the meaning of sections 3 and 4 of the Illegal Dispossession Act,
2005. He has submitted that the tr ial Court, while dismissing the complaint has not
considered all the above stated facts of the case.
4. On the other hand, learned counsel for respondent No.1 has vehemently opposed the
petition and has stated that the property in dispute, which is in po ssession of respondent No.1
is a different property and is not the subject -matter of civil suit as well as the one in respect of
which, settlement was arrived at between the parties. He has stated that the trial Court has
acted justly and properly, as such , the judgment impugned cannot be interfered.
5. We have heard the learned counsel for appellant and have gone through the record, as well,
which reveals that, complaint has been filed by appellant against respondent No.1 in respect
of land described her einabove. Contention of complainant is that, respondent No.1 was his
tenant, from whom, he has obtained possession in view of private settlement arriving at
between the parties by the intervension of notables of area. In view of same, it was settled
that, the respondent would hand over possession of the land in question to
complainant/appellant subject to payment of Rs.200,000. According to appellant, he has paid
the said amount through cheque. After getting possession, the respondent has now started
interf ering in the property in dispute and illegally occupied it without having any lawful
authority. It is important to mention here that the respondent has not denied the
possession over land in question and has claimed that, he is already occupying the same
in his own capacity and that, the land in question is subject -matter in respect which, the
settlement was arrived at.
It may also be noted that after filing of complaint, the respondent has filed a civil suit in
respect of property, which is a subject -matter of present complaint, wherein, he has
shown himself to be in lawful possession, requesting that, the petitioner and others are
trying to illegally dispossess him, therefore, they be restrained. It is important to
mention here that the appellant had rai sed same plea, as has been raised in his
complaint. After dismissal of suit, when the matter came up before this Court, it was
held that, after handing over possession of the disputed property by the respondent to
appellant through settlement and subject t o payment of Rs.200,000 then, any attempt to
occupy the premises would tempt and amounts to trespass within purview of law. These
findings were challenged before the honourable Supreme Court of Pakistan, but the
same were maintained.
It transpired that in spite of declaring possession of the respondent as illegal, still, he is
continuing to retain the same.
Dispossession means occupying the land, without the consent of occupier or owner, or,
obtaining possession of the land, other than due course of la w. Illegal Dispossession Act
has been promulgated to prevent the action of class or group of persons, who have the
credentials or antecedents of being property grabbers, Qabza Group, Land Mafia and
illegal encroachers, thus, the main object is to curb the activities of such like persons
and to nip the evil in the bud, therefore, special provisions were enforced. Keeping in
view the gravity of illegal act, the lawmakers have not only specified the level of trial,
as the Court of Session, but also punishment of imprisonment has been made extendable
up to ten (10) years with fine and also provided a provision for compensating the
complainant under section 544 -A, Cr.P.C.
Coming to the case, it is strangely to note here that in spite of the fact that all the
Courts, right from Civil Judge up to honourable Supreme Court of Pakistan, have held
the possession of respondent No.1 over land in dispute as illegal, and at the same time,
it has also been held that, earlier, possession of the land in dispute was handed ov er to
appellant, thus, again, occupying the land by the respondent amounts to illegal
occupation with the view to grab the property, illegally, without having any entitlement.
The appellant, in proof of his complaint, has not only produced the judgments referred
to the above, but has also produced ten (10) witnesses and recorded his statement as
P.W.1, through whom, the appellant has fully established his case and also proved his
dispossession I by hands of respondent.
The respondent was examined under section 342, Cr.P.C., wherein, to question No.4, he
has replied that, though he had received the said cheques in question; but it was not with
regard to the property in question.
It is to be noted that the trial Court, while dismissing the complaint, has held that, there
is no direct evidence on record, showing that, the respondent/accused had delivered that
possession of property in question to complainant. According to him, it was rented out
to respondent No.1 for the purpose of dairy farm and, presentl y, a house is, thereon,
existence.
It is worthwhile to mention here that the plea of respondent No.1 has already not been
accepted by Civil Judge -II, Quetta, as well as, Additional District Judge -II, Quetta. The
trial Court, while deciding the complaint, was under obligation to have taken note of the
same, but he has not considered these judgments, without any rhyme and reasons. The
act of trial Court by not considering the verdicts of competent Court of law, as well as,
evidence and material available on record before him, amounts to mis -appreciation and
non-appreciation« of evidence, which is an illegality and irregularity on his part. Thus,
in such view of the matter, the judgment impugned dated 18 -4-2008, passed by the
Additional Sessions Judge -IV, Que tta, is not sustainable.
6. Thus, in view of above, respondent No.1 has committed an offence within the
meaning of section 3 of the Illegal Dispossession Act, 2005, by illegally dispossessing
the appellant from the land in dispute, therefore, we are incl ined to accept the appeal,
consequently, respondent No.1 is convicted and sentenced under section 3 of Illegal
Dispossession Act, 2005, to suffer one (1) year's R.I. and to pay fine of Rs.10,000 and
in default whereof, he shall further suffer three (3) mon ths' S.I.
The concerned police authorities are directed to obtain possession of the land bearing
Khasra Nos.870, 671, 877, 784, Khewat/Khatooni No.1254/82, measuring 9867 sq. ft.
Mohal and Mouza Ward Nq.28, Tappa Urban -II, Tehsil and District Quetta, and the
property having Khewat/Khatooni No.209/77, Khasra No.780, measuring 2309 sq.ft.,
from respondent No.1 and hand over the same to appellant within a week after
announcement of this judgment.
N.H.Q./11/Q Appeal accepted.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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