P L D 2012 Balochist an 189
Before Muhammad Hashim Khan Kakar, J
ABDUL QAHIR alias SADIQ and 3 others ---Petitioners
Versus
BIBI AISHA and 2 others ---Respondents
Criminal Revision No.73 of 2012, decided on 8th June, 2012.
(a) Illegal Dispossession Act (XI of 2005) ---
----Ss. 2(c), 2(d), 3, 4 & 7 ---"Lawful possession" ---Proof ---Scope ---"Owner" ---Proof ---
Scope --- Property was recorded in the name of the deceased -husband of the complainant ---
Whether complaint under the Illegal Dispossession Act, 2005, was maintainable under such
circumstances ---Watchman residing in the property on behalf of the complainant ---Whether
such possession of watchman qualified as possession by the complainant ---Lodging of F.I.R.
not a bar to availing remedy under the Illegal Dispossession Act , 2005 and vice versa ---Trial
Court had allowed the application of the complainant under S.7 of the Illegal Dispossession
Act, 2005 --- Contentions of the accused persons (petitioners) were that documents referred to
and relied upon by the complainant were fake and fabricated; that the complainant was
neither occupier nor recorded owner of the property in question, and the complainant not
being in possession of the property had no legal status to maintain the direct complaint under
the Illegal Dispossession Act, 2005 ---Validity ---For the purpose of proving lawful
possession, it was incumbent upon the person claiming such possession to produce certain
documents or evidence to prove his possession as lawful possession over the property ---
Complainant had produc ed ownership documents of the property, while the accused persons
did not produce any evidence or documents to show that they were either lawful owners or
occupiers of the property ---Although complainant was not the recorded owner of the
property, which st ood recorded in the name of her deceased -husband but a Muslim's estate
vested immediately in his or her heirs after his/her death and the devolution of property took
place immediately through inheritance without any intervention ---Although complainant was
not in actual and physical possession of the property at the time of the alleged dispossession
but her watchmen was residing therein along with his family members, who were forcibly
dispossessed by the accused persons ---Possession of the complainant could not be denied in
such circumstances ---Complainant being the owner and occupier of the property had the legal
status to maintain the direct complaint ---Lodging of F.I.R. by the wife of the watchman
would not act as a bar to avail remedy under the Illegal Di spossession Act, 2005, nor availing
of remedy under the said Act would act as a bar from initiating proceedings under any other
law---Trial Court had given valid and lawful reasons while exercising its jurisdiction in
the matter ---Revision petiti on was dismissed, in circumstances.
Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Black's Law Dictionary 6th Edn.
P.1163 and Surrah Baqarah, Verse No.220 ref.
(b) Illegal Dispossession Act (XI of 2005) ---
----S. 7 ---"Possession" ---Connotation ---Possession would cover both constructive and
physical possession ---Word "possession" had to be given the widest possible meaning and it
should not be confined to actual or constructive possession, but must be extended to every
sort of possessi on known to law ---Word "possession" within the meaning of S.7 of the Illegal
Dispossession Act, 2005, must be interpreted in its broadest sense, and apart from physical
possession, it must also mean the ownership of, control over the immovable prope rty
concerned.
(c) Words and phrases ---
----"Possession" ---Meaning.
Black's Law Dictionary 6th Edn. P.1163 ref.
(d) Illegal Dispossession Act (XI of 2005) ---
----Ss. 3, 4 & 7 ---"Constructive possession" ---Scope ---Person who is not in actual po ssession
over a thing, but knowingly has both the power and the intention at a given time to exercise
dominion or control over it, either directly or through another person or persons, is in
constructive possession of it.
(e) Criminal Procedure Code (V of 1898) ---
----S. 403 --- Illegal Dispossession Act (XI of 2005), Ss. 3 & 4 ---Double jeopardy ---Scope ---
Complaint under the Illegal Dispossession Act, 2005 ---Lodging of F.I.R./filing of complaint
concerning the same property ---"Double jeopardy" rule of ---Applicability ---Scope ---Concept
of double jeopardy was attracted where the accused had been tried for the offence charged
with by a competent court and there was a judgment or order of conviction or acquittal ---
Punishment provided in S.3(2) of the Ille gal Dispossession Act, 2005, appeared to be in
addition to the one that a person might entail under any other law ---Mere lodging of F.I.R.
and filing of complaint under the Illegal Dispossession Act, 2005, would not attract the rule
of double jeopardy .
(f) Illegal Dispossession Act (XI of 2005) ---
----Ss. 3 & 4 ---Constitution of Pakistan, Art.24 ---Protection of property rights of widows and
orphans ---Scope ---Primary duty of the State and the courts to protect the rights of widows
and orphans and t hey should not be let alone at the mercy of the land grabbers.
Kamran Murtaza, Amanullah Batezai and Rizwan Ejaz for Petitioners.
Muhammad Hassan Mutawakil for the Complainant.
Abdul Karim Malghani for the State.
Date of hearing: 4th June, 2012.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. --This criminal revision petition has been
directed against the order dated 15th May, 2012 (the "impugned order"), passed by learned
Additional Sessions Judge -I, Quetta (the "trial Court"), whereby an application under Section
7 of the Illegal Dispossession Act 2005 (the "Ace of 2005") was allowed.
2. Precisely the facts, giving rise to the instant petition, are that a complaint under
Sections 3 and 4 of the Act of 2005 was filed in the court of Sessions Judge, Quett a by
complainant/respondent No.1 Bibi Ayesha (the complainant"), which was transferred to the
file of the trial Court, who had forwarded the same for inquiry to Station House Officer
(SHO) Airport Police Station (PS), Quetta and, accordingly, SHO submitte d the report,
wherein he reported that actually ownership of Bungalow No.112 -CC, measuring 203 square
yards, Chiltan Housing Extension Scheme, Airport Road, Quetta (the "bungalow in
question") vests with the, complainant, who happens to be the widow of lat e Muhammad
Sharif and the petitioners had forcibly occupied the bungalow in question, which was in
possession of the complainant. After having gone through the report of SHO, the trial Court
vide impugned order has ordered restoration of peaceful possessio n of the bungalow in
question to the complainant as provided under section 7 of the Act of 2005.
3. M/s. Kamran Murtaza, Amanullah Batezai and Rizwan Ejaz, learned counsel for the
petitioners, inter alia; contended that the trial Court acted in haste, while deciding the
application under Section 7 of the Act of 2005; that the documents referred to and relied upon
by the complainant were fake and fabricated; that the complainant was neither occupier, nor
recorded owner of the bungalow in question, and fu rthermore, the complainant being not in
possession has no legal status to maintain the direct complaint and the trial Court has fallen in
error, while taking cognizance of the offence.
4. On the other hand, Mr. Hassan Mutawakil, learned counsel for the c omplainant and
Mr. Abdul Karim Malghani, Advocate, representing the State, submitted that the complainant
is a widow; that after the death of her husband, she, along with her minor son, viz.
Muhammad Sharif, had gone to Dalbandin to celebrate Eid vacations and her watchman,
namely, Abdul Zahir was residing in the bungalow in question; and that the petitioners,
taking advantage of complainant's absence, illegally and forcibly occupied the bungalow in
question by dispossessing the watchman and his family memb ers. He also referred to Crime
No.162 of 2011 dated 28th November 2011, lodged by Mst. Bibi Najma wife of Abdul Zahir,
as at the time of forcible dispossession, she was also subjected to criminal assault with intent
to outrage her modesty.
5. I have cons idered the arguments advanced by learned counsel for the parties and have
gone through the material available before me.
6. At the very outset, it would be appropriate to setout some relevant particulars of the
present petition. It is complainant's conte ntion, inter alia; that she is widow of one
Muhammad Karim son of Khan Muhammad (the "deceased"), who, during his lifetime, had
purchased the bungalow in question in the year 2006 from petitioner No.1 and, thereafter,
started residing therein. According to the complainant, the ownership rights were also
transferred in the name of the deceased vide letter No.112 -CC/Chiltan Housing EXT (QDA)E
4512 -15 dated 25th November 2006. As per the complainant, she and the minor are the legal
heirs of the deceased, wh o expired in the year 2010, and on 6th October 2011, taking
advantage of her absence, the petitioners illegally and unlawfully occupied the bungalow in
question by dispossessing her watchman.
7. 1 am of the view that the Act of 2005 has been promulgated by the government to
protect the lawful possession of lawful owners of the property and possession of lawful
occupiers and against illegal dispossession at the hands of land grabbers and land mafia. The
Preamble of the Act of 2005 is quoted herein below:
"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."
The term "occupier" has been defined under subsection (c) to Section 2 of the Act 2005,
which means that the person, who is in lawful possession of the property. The definition
contained in subsection (2) ibid shows that the occupation of the person, who is claiming the
said possession, must be in lawful possession over the said pr operty. For the purpose of
proving the said fact, it is incumbent upon the person, claiming the lawful possession of the
property, to produce certain documents or evidence to prove his possession as lawful
possession over the property, The complainant has produced the ownership. documents of the
bungalow in question, while, on the other hand, on repeated queries from learned counsel for
the petitioners no evidence or documents have been shown or produced to show that they
were either -lawful owners or occupi ers of the bungalow in question within the meaning of
subsections (c) and (d) to Section 2 of the Act of 2005, Thus, their claim, being lawful
occupiers of the bungalow in question, could not be acceded to.
8. Similarly, the term "owner" has also been defined in sub -section (d) to section 2
of the Act of 2005, which also means that the person, who actually owns the property at the
time of dispossession, otherwise than through a process of law. The said definition again
shows that the owner, who is claiming the said property, must prove his status as lawful, in
case, he has been dispossessed from the said property.
9. It is correct, as pointed out by learned counsel for the petitioners, that the complainant
is not recorded owner and the bungalow in question stood recorded in the name of the
deceased, viz. Muhammad Karim, however, while making this submission, learned counsel
for the petitioners, seems to have overlooked the settled principle of law that, Muslim's estate
vests immediately on his d eath in his or her heirs and devolution of property takes place
through inheritance immediately without any other intervention. In determining the scope of
my view, reference can be give to a case of Ghulam Ali v Mst. Ghulam Sarwar Naqvi, PLD
1990 Supreme Court 1, wherein the Hon'ble apex Court observed as under:
"As soon as an owner dies, succession to his property opens. There is no State intervention or
clergy's intervention needed for the passing of the title immediately, to the heirs. Thus it is
obvious that a Muslim's estate legally and juridically vests immediately on his death in his or
her heirs and their rights respectively come into separate existence forthwith. The theory of
representation of the estate by an intermediary is unknown to Islamic Law of inheritance as
compared to other systems. Thus there being no vesting of the estate of the deceased for an
interregnum in any one like an executor or administrator, it devolves on the heirs
automatically, and immediately in definite shares and ,frac tion. It is so notwithstanding
whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic
law. It is only when the property has thus vested in the heir after the succession opens, that he
or she can alienate it in a lawful manner.
About the vesting of the property in a Muslim heir, if the State, the Court, the clergy, the
executor, the administrator does not intervene, no other body intervenes on any other
principle, authority, or relationship --even of kinship. Th us the brothers, the father, husband,
son or vice versa, does not or cannot intervene as an intermediary."
10. It is true that on 31st October 2011, the complainant was not in actual and physical
possession of the bungalow in question, but it is equally true that at the relevant time, her
watchman, namely, Abdul Zahir was residing in the bungalow in question along with his
family members, who was forcibly dispossessed by the petitioners. Although the term
"possession" has not been defined in Section 2 of the Act of 2005, yet in the ordinary
acceptation of the term "possession", the said expression would cover both constructive and
physical possession. The word "possession" must be given a widest possible meaning. It
should not be confined to possession, ac tual or constructive, but must be extended to every
sort of possession known to law. To constitute "possession" within the meaning of Section 7
of the Act of 2005, it must be interpreted in its broadest sense, and apart from physical
possession, it must al so mean the ownership of, and control over, the immovable property
concerned. According to Black's Law Dictionary Sixth Edition page 1163, the term
"possession" means:
"Having control over a thing with the intent to have and to exercise such control. Th e
detention and control, or the manual or ideal custody, of anything which may be the subject
of property, for one's use and enjoyment, either as owner or as the proprietor of a qualified
right in it, and either held personally or by another who exercises it in one's place and name.
Act or State of possessing that condition of facts under which one can exercise his power
over a corporeal thing at his pleasure to the exclusion of all other persons."
11. Admittedly, on 31st October 2011, possession of the c omplainant cannot be denied, as
at that point of time, her watchman Abdul Zahir was holding the bungalow in question on
her behalf. It is by now settled that a person, who, although not in actual possession,
knowingly has both the power and the intention at a given time to exercise dominion or
control over a thing, either directly or through another person or persons, is then in
constructive possession of it.
12. Reverting to the contention of learned counsel for the petitioners regarding
maintainability of direct complaint. I am of the considered view that under Sections 3 and 4
of the Act of 2005, two persons have been defined, who can approach the Court of competent
jurisdiction for enforcement of said law; (i) owner and the other is (ii) occupier. As already
observed, the complainant, being owner and occupier, had the legal status to maintain the
instant direct complaint.
13. Besides the above legal and factual position, in Holy Qur'an in Surrah Baqarah Verse
No.220, it is the commandment of Almighty Allah to protect the rights of orphans:
"(Their bearings) on this life and the Hereafter. They ask the concerning orphans. Say: "The
best thing to do is what is for their good; if ye mix their affairs with yours, they are your
brethren; but Allah knows the man who means mischief from the man who means good And
if Allah had wished, he could have put you into difficulties: He is indeed exalted in Power,
Wise."
14. Similarly, I was also not impressed by the prime contention of learned counsel for
the petitioners regarding the provisions of section 403 of the Criminal Procedure Code
1898 (Cr.P.C.). Before this section can be invoked, the following conditions have to be
satisfied:
(i) that the accused has already been tried for the offence charged against him;
(ii) that the trial was held by a Court of competent jurisdiction; and
(iii) that there was a judgment or order of acquittal or conviction;
The concept of double jeopardy is attracted where the accused had been tried for the offence
charged with by a competent Court and there is judgment or order of conviction or acquittal
and mere lodging of F.I.R. and filing of complaint would not attract the rule of double
jeopardy. Even otherwise, it may be observed that the Act of 2005 is a special law providing
remedy to aggrieved person, who has been illegally dispossessed from the property and
provides for a new punishment for offence committed under the Act of 2005. The punishment
that is providing in subsection (2) of section 3 of the Act of 200 5 appears to be in addition to
the one that a person may entail under any other law. Apparently, the lodging of F.I.R., that
too by the wife of complainant's watchman, under general law will not act as a bar to avail
remedy under the Act of 2005 by the pet itioners, nor the availing of remedy under the Act of
2005 will act as bar from. initiating proceedings under any other law for the time being in
force. The record is indicative of the fact that Crime No.162 of 2011 was lodged under
sections 337 -AD, 354, 4 47, 448, 452 read with sections 147 and 149 of the Pakistan Penal
Code, 1860 (PPC) and the accused persons have been, reportedly, charged under the said
Sections of law by the Judicial Magistrate -II, Quetta regarding assaulting Najma,
complainant of the. a foresaid F.I.R. and the matter is still subjudice before the said Court.
The concept of double jeopardy is attracted, where the accused has been tried for the offence
charged by a competent Court and there is a judgment or order of conviction or acquittal.
Merely lodging of F.1.R. and filing of a complaint under the Act of 2005 will not attract the
rule of double jeopardy.
15. It is also mandate of the Constitution of Islamic Republic of Pakistan, 1973 (the
"Constitution"), as provided under Article 24 th ereof, that "no person shall be deprived of his
property save in accordance with law". It is the primary duty of the Courts, as well as, the
State to protect the rights of widows and orphans and they should not be let alone at the
mercy of land grabbers. S ection 7 of the Act of 2005, authorizes the Court to conclude that
the person, prima facie, is not in lawful possession; section 7(1) of the Act of 2005 speaks as
under:
"7. Eviction and mode of recovery as an interim relief. -(1) If during trial the Cour t is satisfied
that a person is found prima facie to be not in lawful possession, the Court shall, as an interim
relief direct him to put the owner or occupier, as the case may be, in possession."
16. A perusal of the documents placed on record by the co mplainant, the factum of
authenticity of which was also confirmed and verified by the Director Law, Quetta
Development Authority (QDA), Deputy Director (ER) QDA and Assistant Director (ER.)
QDA, reveal beyond any doubt that the complainant was owner in pos session of the
bungalow in question, who had been deprived by the petitioners. Even otherwise, the
impugned order reveals that valid and lawful reasons have been given by the `trial Court,
while exercising jurisdiction in the matter. The discretionary orde r passed by the trial Court
cannot be interfered within the exercise of revisional jurisdiction of this Court, until it can be
shown that the same is whimsical, fanciful or arbitrary. Learned counsel for the petitioners
have not been able to point out any illegality or infirmity in the impugned order, thus, is
immune from interference.
17. For what has been discussed above, I see no force in this revision petition, which is
dismissed.
These are the reasons of my short order dated 4th June 2012, announce d in the open Court.
M.W.A./42/Bal. Petition 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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