2013 P Cr. L J 188
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
SHAHID HAKEEM ---Appellant
Versus
ALTAF HUSSAIN AGHA and another ---Respondents
Criminal Appeal No.14 of 2009, decided on 5th August, 2012.
Illegal Dispossession Act (XI of 2005) ---
----S. 3 ---Encroachment and illegal dispossession ---Appreciation of evidence ---In order to
constitute an offence under S.3(1) of Illegal Dispossession Act, 2005, complainant must disclose
existence of both, unlawful act (actus rea), and crimi nal intent (mens rea) ---Mere encroachment
was something different from illegal dispossession as encroachment did not involve intention of
grabbing the property ---Illegal Dispossession Act, 2005, having no retrospective effect, could not
be applicable to th e cases of unauthorized occupants pending before any other forum on the date
of promulgation of said Act, but if the case of illegal occupant was not already pending before
any other forum on the date of promulgation of said Act, same would squarely fall w ithin the
ambit of said Act.
Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 rel.
H. Shakil Ahmed for Appellant.
Munir Ahmed Langove for Respondent No.1.
Abdul Sattar Durrani, D.P. -G. for the State.
Date of hearing: 29th July, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This criminal appeal has been
preferred against the judgment dated 21st February, 2009, passed by the Sessions Judge, Lasbella
at Hub, whereby he has convicted and sentenced appellant Shahid Hakeem under section 3(2) of
the Illegal Dispossession Act 2005 to suffer two years' R.I. and fine of Rs.10,000, in default
whereof to further undergo S.I. for one month. He was also directed to pay an amount of
Rs.20,000 as compensation to the complainant as required under s ection 544 -A of the Cr.P.C.
2. Brief facts of the case, necessary for disposal of this appeal, are that respondent No.1
Altaf Hussain Agha filed a complaint dated 24th March, 2008 under sections 3, 6, 7 and 8 of the
Illegal Dispossession Act, 2005 agains t one Javed Sikandar (the then Managing Director of
Bolan Casting Ltd.), wherein it was alleged that the complainant was the proprietor of Messrs
Abbas Spinning and Weaving Mills, who purchased in auction the property of Bela Engineering
Ltd. from the Offi cial Assignee of Sindh High Court failing under Survey No.35 in being Survey
Nos.253, 88, 120, 80, 194, 258, 259, 79, 81, 83, 89, 99, 111, 112, 115, 116, 117, 118, 119, 193,
195, 196, 197, 198, 252, 254, 255, 256, 257, 260, 261, 264, 360, 102, 87, 99, 91, 113, 114, and
192, situated at Hub, District Lasbella, measuring about 419 acres. It was further alleged that
prior to Bela Engineering Ltd., the aforesaid property was granted to Messrs Ghandara Industries
Ltd. by the Government of Balochistan by means of agreement dated February, 1970. The
representative of the Official Assignee, High Court of Sindh Karachi, after purchase, has handed
over the vacant possession of the property in question to the complainant without any
interruption. He further averred tha t since the complainant is residing at Karachi, therefore, in his
absence, some persons, including the respondent Javed Sikandar, have illegally occupied certain
pieces of the property, at which he filed a complaint in the Court of Sessions Judge, Labella,
which was accepted vide judgment dated 20th March, 2008 and in pursuance of the said
judgment, vacant possession of the said pieces of land was handed over to him. He also alleged
that, thereafter, the respondent Javed Sikandar and others also encroached upon his property
measuring 12 Acre, 1 -Rod, 9 -Poles falling under Khasra No.102/90 -91, at which, he approached
different authorities including the respondent to vacate the property, but with no fruitful results.
3. After registering the complaint and sub mission of the inquiry by the SHO police station,
Hub, the trial Court has taken cognizance of the matter. The complainant/respondent, to
substantiate the charge, examined eight witnesses. Thereafter, the appellant was examined under
section 342 of the Cr. P.C. He also recorded his statement on oath under section 340(2) of the
Cr.P.C. and produced two witnesses in defence. The trial Court, after close of parties' evidence,
vide impugned judgment, convicted and sentenced the appellant, as mentioned hereinabov e,
hence this appeal.
4. I have heard Mr. H. Shakil Ahmed, learned counsel for the appellant, Mr. Munir Ahmed
Langove, learned counsel for respondent No.1, Mr. Abdul Sattar Durrani, Deputy Prosecutor -
General, representing the State and also perused the r ecord with their valuable assistance.
Mr. H. Shakil Ahmed, learned counsel for the appellant, contended that the Illegal
Dispossession Act, 2005 (the Act) had come into force on 30th June, 2005, whereas the land in
question was purchased by Bolan Castin gs Limited (hereinafter referred to as 'BCL') and the
boundary walls had been built much before the date of promulgation of the Act and, admittedly,
the Act, having no retrospective effect, could not be invoked to cover a past and post matters. He
further contended that the most important ingredient of the Act is that there should be
dispossession of the owner or occupier of the property and in case the owner of occupier did not
level the allegation of his dispossession or forcible occupation of accused ove r the property, then
the provisions of the Act are not applicable. He further argued with vehemence that, for
constituting an offence under the Act, it is the duty of the prosecution to establish mens rea on
the part of the accused. There is no evidence wh atsoever in nature in that regard. Merely because
the appellant continued to manage the land within the boundary walls constructed before he
entered office under BCL, will not import mens rea on his part.
On the other hand, Mr. Munir Ahmed Langove, appe aring on behalf of the
respondent/complainant and Mr. Abdul Sattar Durrani, Deputy Prosecutor -General, representing
the State, contended that sufficient documents have been brought on record, establishing the fact
that the vacant possession of the property in question was handed over to the complainant by the
Official Assignee of the Sindh High Court and a piece thereof was illegally and unlawfully
occupied by the BCL authorities, thus, the trial Court has rightly exercised its jurisdiction by
making an ord er of restoration of the possession to the complainant and conviction of the
appellant, thus, impugned judgment, being passed after proper appraisal of evidence, does not
require any interference by this court.
5. There is no cavil to the proposition tha t the Act, having no retrospective effect, may not
be applicable to the cases of unauthorized occupants pending before any other forum on the date
of promulgation of the said Act, but if the case of an illegal occupant was not already pending
before any ot her forum on the date of enforcement of the Act, the same would squarely fall
within the ambit of the Act. In this regard, reference can be made to a case of Rahim Tahir v.
Ahmed Jan and 2 others reported in PLD 2007 SC 423.
6. The perusal of record reve als that the initial inquiry was conducted by P.W.4 Muhammad
Amin, IP, who submitted his report as Exh.P/4 -G, which shows that appellant's company BCL
was found in possession of an access of area of about 4 acres of land belonging to the
complainant Agha A tif Hussain. The record also indicates that on 26th January, 2009, one
Hafeez -ur-Rehman, Advocate, was also appointed as Local Commissioner, who, after visiting
the site in presence of both the parties, submitted his report dated 12th February, 2009, which
reads as under: --
"As per revenue record of rights the area of 09 -03-31 acre under Khasra Nos.107/3, 90/2,
91/1, 102/3, 102/4 and an area of 13 -01-12 under Khasra Nos. 102, 113, 89, 90, and an area 0 -0-
20 poles under Khasra No.102/1, total area measuri ng 23 -01-25 Acres, is entered in the name of
Bolan Casting Factory Hub, but on measurement it was found 25 -03-15 Acres as such the Bolan
Casting Factory Hub possesses an excess area of 02 -01-30 Acres."
It would also be advantageous to reproduce hereinbe low the memo of possession
Exh.P/3 -B, showing the handing over vacant possession to the complainant, which speaks as
under: --
"Handed over today i.e. 5 -5-2003 physical and vacant possession of land bearing Survey
No.35, measuring about 419 acres, situat ed at Hub Chowki, District Lasbella, Ba1ochistan being
property in J. Misc. No.13 of 2000 (Messrs Engineers Limited ..... In liquidation) to Mr. Altaf
Hussain Agha son of Raza Hussain Agha, Proprietor of Messrs Abbas Spinning Weaving."
7. A careful perusal of the ocular account furnished by the complainant's witnesses and
quoted portion of Exh.P/3 -B and Exh.P/4 -G of the report of concerned SHO, would show and
suggest me to believe that the appellant's company viz Bolan Casting Ltd, without any lawful
authority, occupied an excess area, belonging to the complainant, the vacant possession whereof
was handed over to the complainant by the Official Assignee of the Sindh High Court. It has also
been established that the said portion of his proper ty, after completion of the boundary wall, has
been, allegedly, occupied by the appellant's company. Thus, the findings of the trial Court up to
that extant, seem to be made after proper appraisal of evidence and needs no interference by this
court.
8. So far as conviction and sentence awarded to the appellant is concerned, the record
indicates that initially the complaint was instituted on 4th June, 2008 against Javed Sikandar with
the allegation that in his capacity as Managing Director of the Company h ad encroached upon an
area of 12 -1-9 Acres, falling under Khasra No.102/90 -91, whereas the present appellant viz
Shahid Hakeem was not on the scene at the relevant time and he has joined the BCL on 15th
July, 2005 and was made CEO in December, 2006, thus, he cannot be held criminally liable
under the provisions of the Act. Legally speaking, in order to constitute an offence under section
3(1) of the Act, complainant must disclose existence of both i.e. unlawful Act (actus rea) and
criminal intent (mens rea) . Admittedly, mere encroachment is something different from illegal
dispossession, as the former does not involve intention of grabbing of the property. I am afraid
that in another case titled as "complaint No.2 of 2007, instituted under the Act by the sam e
complainant against Moula Bakhsh and others", the Court of Session in its judgment dated 20th
March, 2008 had found the respondents therein guilty of trespassing upon the land of
complainant, but had not awarded them any type of imprisonment or fine and only ordered for
the restoration of possession, but, in the instant case, conviction and sentence has been awarded
to the appellant, despite the fact that his name was inserted in the complaint after its institution,
that too without any legal justificatio n. Thus, the conviction and sentence awarded to the
appellant Shahid Hakeem by means of impugned judgment is set aside and he is acquitted of the
charge. He is on bail, his bail bond stands discharged.
The appeal, with above modification in the impugned judgment, is, accordingly, disposed
of.
HBT/94/Q 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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