2015 P Cr. L J 1490
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
ABDUL HAQUE ---Petitioner
versus
MIR AHMED and 6 others ---Respondents
Criminal Revision No.78 of 2013, decided on 7th July, 2015.
(a) Illegal Dispossession Act (XI of 2005) ---
----Ss. 3, 4 & 9 ---Criminal Procedure Code (V of 1898), Preamble ---Prevention of illegal
possession of property ---Applicability of Cr.P.C. ---Scope ---Illegal Dispossession Act, 2005,
contained no provision to provide a right of appeal or revision to the aggrieved person against
interim or final orders passed in the cases filed under said Act ---Absence of the provisions to the
effect, never meant denial of right of appeal to an aggrieved person under said Act ---Section 9 of
Illegal Dispossession Ac t, 2005, was clear enough to extend the provisions of Cr.P.C. to the
proceedings held under said Act, which was comprehensive enough to deal with the issue ---
Absence of specific provision of appeal in the Illegal Dispossession Act, 2005, in no way would
affect the right of appeal or revision ---Application of Cr.P.C., extended in the cases dealt under
Illegal Dispossession Act, 2005, could be pressed when the difficulty would arise due to absence
of specific provision ---Aggrieved person, had a right of appea l or revision as provided in the
Cr.P.C. for redressal of his grievance.
(b) Illegal Dispossession Act (XI of 2005) ---
----Ss. 3, 4 & 5 ---Criminal Procedure Code (V of 1898), Ss.435 & 439 ---Illegal dispossession ---
Complaint against ---Investigation and procedure ---Revisional jurisdiction, exercise of ---In the
present case, no order of conviction or acquittal was passed on the allegation made in the
complaint ---No charge was framed, and complaint was dismissed before taking cognizance of
the offence, and framing of the charge ---Only an order for conducting investigation as required
under S.5 of Illegal Dispossession Act, 2005 was on record ---Trial Court concluded that the
matter between the parties was purely of civil nature, not falling within the ambit of Illegal
Dispossession Act, 2005, which resulted in dismissal of complaint ---In absence of an order of
acquittal or conviction on framing of the charge, revision petition, would be competent on
dismissal of complaint, which would decide the maintainabili ty of the petition ---High Court, had
to look into the legality of the order in exercise of its revisional jurisdiction.
(c) Illegal Dispossession Act (XI of 2005) ---
----Ss. 3 & 4 ---Criminal Procedure Code (V of 1898), Ss.435 & 439 ---Illegal dispossess ion---
Complaint ---Revision ---Complainant, was aggrieved of not only that he was dispossessed from
his property, but the standing crops were also damaged and destroyed ---Respondents raised
construction on the land in question ---Report of investigation submi tted by Tehsildar, described
existence of the property in the names of several persons, including the name of the complainant -
--Physical possession at the site as described by the report, was with the respondents, who not
only occupied the subject land, bu t had also constructed houses on the land ---Such fact, only
described the physical possession with the respondents, but not enough to consider an offence
under Illegal Dispossession Act, 2005 ---To establish criminal liability on the part of the
respondents , the complainant, must be specific enough to describe the act as illegal and the
extent of involvement of the respondents in the commission thereof ---Contents of the complaint,
failed to disclose the measurement and area of the property, from which petiti oners were
dispossessed ---Even the measurement of the area, where the alleged construction was raised,
nowhere disclosed, nor specified the period when such construction was raised ---Mode of
dispossession was also not stated ---No allegation was levelled to the effect that the respondents
were land -grabbers, and with show of force, illegally occupied the land in question ---Trial Court
properly assessed the available material, and arrived to a decision on the basis of the contents of
the complaint, in additio n to the investigation report ---No case for illegal dispossession, could be
made out on the basis of the available material ---No illegality or irregularity on the part of the
Trial Court had been pointed out, which needed interference by High Court ---Petition being
meritless, was dismissed, in circumstances.
Mian Bahadar Jan v. State PLD 2009 Pesh. 70; 2006 PCr.LJ 1381 and Habibullah v.
State 2009 MLD 1162 ref.
Malook Ahmed Langove for Petitioner.
Asadullah Langove for Amir Hamza Deputy Prosecutor General for Respondents Nos. 1
to 6.
Date of hearing: 20th March, 2015.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioner Abdul Haq assailed order dated
20th August 2013 of Incharge Sessions Judge, Kalat Division at Mastung, whereby the
compl aint filed by him under section 3 of the Illegal Dispossession Act, 2005 (Act, 2005) was
dismissed. The impugned order was questioned while contending that the trial court failed to
appreciate the report called, in comparison to the facts and the circumsta nces of the case, thus a
decision contrary to the material on the record, neither could be legal nor could hold the field.
Further, the observation that the dispute between the parties was of civil in nature, was also due
to misappreciation of the material on the record, thus, of no legal effect. Furthermore, proper
opportunities for hearing were denied to him, thus he was deprived of his right. The prayer was
for setting aside of the impugned order and acceptance of the complaint with an order under the
Act 2005, against the respondent.
2. The respondents Nos.1 to 6 were put on notice and also to the Prosecutor General. All the
concerned were heard and the documents on the record were perused. The documents available
in the case file reveals that the peti tioner filed a complaint under sections 3 and 4 of the Illegal
Dispossession Act, 2005 with the assertions that the land situated in Mohal Mouza Pingove,
Tappa Spezand, Tehsil Dasht, District Mastung commonly known as Damb Lehri was owned by
him (petitione r) and his tribesmen, and their names appeared in the revenue record as such.
Further, a suit was filed by the respondent Nos. 1 to 6 in the year 2003 for the same property, but
it was dismissed by Majlis -e-Shoora Kalat Division at Mastung, and the order w as upheld by this
court. It was contended that the respondents not only interfered in his property, but also assaulted
his Bazgars and forcibly stopped them from cultivation. The act was reported, the respondents
were convicted for the act on completion of the trial by the Judicial Magistrate, Dasht vide order
dated 25th August 2003. Despite the same the respondents continued with their conduct, not only
interfered in the possession, but also , destroyed the standing crops, thus caused a loss of
Rs.60,000 ( Rupees sixty thousand). In addition the respondents had constructed houses at
northern side of the property, thus caused them irreparable loss. It was prayed:
3. The learned counsel for the petitioner addressed the maintainability of the revision
petitio n and placed reliance on:
PLD 2009 Peshawar 70
Mian Bahadur Jan v. State
P.Cr.L.J 2006 Lahore 1381
No judgment found on the referred page,
2009 MLD 1162
Habibullah v. State
On merit it was stated that civil litigation had already attained final ity, and at present no
civil or criminal case is pending between the parties except the case in hand.
4. The learned counsel for the respondents Nos. 1 to 6 controverted the submissions and
stated that the property, subject matter of the dispute, was ent ered in the name of the complainant
with fraud and misrepresentation, while no decree of any court of competent jurisdiction existed
in favour of the petitioners. In addition the report of Tehsildar, called by the trial court, also
described their (respond ents) possession.
5. The learned Deputy Prosecutor General was of the view that no case under the Illegal
Dispossession Act, 2005 was made out, in view of para Nos. 4 & 5 of the complaint. Further, the
complaint failed to disclose the area from which the petitioner claimed his dispossession. In
addition the property described to be entered in the names of several persons in the record, but
only the petitioner is before this court.
6. The learned counsel for the petitioner in reply only stated that the p roperty which was in
his personal possession was occupied by the respondents Nos.1 to 6 without having any legal
right or title therein.
7. The petitioner invoked revisional jurisdiction of this court. The order sheet maintained
for 27th August 2014 disc losed the fact that a query to the effect was put to the learned counsel
for the petitioner "to explain as to how the criminal revision petition is competent against
dismissal of a complaint under Sections 3 & 4 of the Illegal Dispossession Act, 2005." Thu s
before going into merit of the case this point has to be addressed. The learned counsel for the
petitioner was of the view that against an order of conviction or acquittal an appeal lies, while
against an order for dismissal of a complaint, no appeal is provided, thus the revisional
jurisdiction of this court was invoked by filing the instant petition. The citations relied failed to
deal with the proposition before this court. The petitioner approached the court of Sessions Judge
by filing a complaint und er the Illegal Dispossession Act, 2005, a special law, for specific
purpose. The plain reading of the Act, 2005 reveals that it contained no provision to provide a
right of appeal or revision to an aggrieved person against interim or final orders passed in the
cases filed under the Act, 2005. The absence of the provisions to the effect never meant denial of
right of appeal to an aggrieved person under the Act 2005. Rather Section 9 of the Act, 2005 is
clear enough to extend the provisions of the Code of Cri minal Procedure to the proceedings held
under this Act, which is comprehensive enough to deal with the issue. Section 9 of the Act, 2005
reads as under:
"Section 9. Application of code. --Unless otherwise provided in this Act, the provisions of
the Code of Criminal Procedure, 1898 (V of 1898), shall apply to the proceedings under this
Act."
Thus absence of specific provision of appeal in the Act, 2005, no way effect the right of
appeal or revision. Rather by virtue of section 9 of the Act the applicati on of Cr.P.C. extended in
the cases dealt under the Act, 2005 and be pressed when the difficulty arises due to absence of a
specific provision. Thus an aggrieved person has a right of appeal or revision as provided in the
Code for redressal of his grievanc es.
8. In the case in hand there is no order of conviction or acquittal of the accused on the
allegations made in the complaint. In addition no charge was framed; rather the complaint was
dismissed before taking cognizance of the offence and framing of t he charge. There was only an
order for conducting of investigation as required under section 5 of the Act, and on receipt of the
report of Tehsildar Dasht, trial court concluded that the matter between the parties was purely of
a civil nature, thus not fal l within the ambit of Illegal Dispossession Act, 2005, resulted in
dismissal of the complaint. The trial court yet to start the proceedings on completion of the
investigation, but instead of taking cognizance of the offence on basis of the available materi al,
arrived to the decision impugned in the instant petition. In absence of an order of acquittal or
conviction on framing of the charge, a revision petition shall lie on dismissal of the complaint,
this decide the maintainability of the petition. This cou rt now has to look into the legality of the
order in exercise of its revisional jurisdiction.
9. Now reverting to the merit of the case, the petitioner being the complainant was
aggrieved of the act on part of the respondents, in result whereof he was no t only dispossessed
from his property, but the standing crops were also damaged and destroyed. It was also alleged
that the respondents raised some construction on the land existed in his (complainant's) name.
The report of the investigation submitted by T ehsildar Dasht described existence of the property
in the names of several persons including the name of the petitioner. The relevant entry was
carried out in the Revenue Record on 19th January, 2000. The physical possession at the site as
described by the report with the persons namely Mir Ahmed, Muhammad Ishaq, Ali Akbar,
Ghulam Rasool, Abdul Haq and Malik Nasrullah (present respondents) who not only occupied
the subject land, but also constructed houses at northern side of the property.
10. This fact o nly described the physical possession with the respondents, but not enough to
constitute an offence under the Act. Something more was required. The petitioner had
approached the court to complain an act of dispossession from an immovable property existed i n
his name. A criminal act was alleged against the respondents, while the penal consequence for
such an act provided in section 3 of the Act, 2005. Thus to establish a criminal liability on part of
the respondents the complaint must be specific enough to d escribe the act as alleged, the extent
of involvement of the respondents in commission therein.
11. In the case in hand the complainant claimed himself to be the recorded owner with
further assertions about pendency of criminal and civil litigations betw een the parties, wherein
the subject matter was the same property, which is subject matter of the instant compliant. The
compliant was with the facts that the act of interference was made twenty days prior to filing of
the complaint, when the standing crop s of wheat were destroyed by the respondents, which
causes loss of Rs.60,000 to him. In addition the respondents did not allow his (petitioner's)
labours to cultivate the land. The unauthorized construction of houses on the property by the
respondents thou gh alleged, but with no necessary details. The contents of the complaint failed to
disclose the measurement and the area of the property from which they were dispossessed. Even
the measurement of the area where the alleged construction was raised no where disclosed, nor
specified the period when such construction was raised. The mode of dispossession also
remained to be stated. There was no allegation that the respondents were land -grabber and with
show of force illegally occupied the land, subject matter o f the complaint. In addition the report
of investigation though described the possession of the respondents but unable to disclose when
the act was committed, or even when the construction was raised.
12. The trial court properly assessed the available m aterial and arrived to a decision on the
basis of the contents of the complaint, in addition to the investigating report. No case for illegal
dispossession could be made out on basis of the available material. No illegality or irregularity
on part of the t rial court had been pointed out which need interference by this court. There is no
merit in the petition, which is hereby dismissed.
HBT/85/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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