P L D 2011 Quetta 76
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, 2011.
(a) Illegal Dispossession Act (XI of 2005) ---
---S. 1(3)---Applicability and scope of Illegal Dispossession Act, 2005--- Illegal Dispossession
Act, 2005 was not be applicable to the cases of unauthorized occupants pending before any
other forum on the date of promulgation of the said Act ---If case o f the illegal occupant was
not already pending before any other forum on the date of enforcement of Act, same would
squarely fell within the ambit of said Act.
Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 rel.
(b) Illegal Dispossession Act (X I of 2005) ---
----S. 3(2)--- Illegal possession of property ---Appreciation of evidence---Ocular account
furnished by the complainant's witness would show and suggest to believe that company of
accused, without any lawful authority, had occupied an excess area belonging to the
complainant, the vacant possession whereof was handed over to the complainant by the Official
Assignee of the High Court ---Findings of the Trial Court up to that extent see med to be made
after proper appraisal of evidence, which needed no interference by High Court ---Initially the
complaint was instituted against Managing Director of the company that he in his capacity of
Managing Director had encroached upon the property, w hereas accused was not on the scene at
the relevant time and had joined later on ---Accused, in circumstances, could not be held
criminally liable under the provisions of the Illegal Dispossession Act, 2005--- In order to
constitute an offence under S.3(1) of the Act, complaint must disclose existence of both
unlawful act and criminal intent ---Mere encroachment was something different from illegal
possession as the former did not involve intention of grabbing of the property ---Name of
accused was inserted in the complaint after its institution without any legal justification ---
Conviction and sentence awarded to accused by means of impugned judgment, was set aside and
' he was acquitted of the charge.
H. Shakil Ahmed for Appellant.
Munir Ahmed Lango for Re spondent 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 m onth. He was also directed to pay an amount of
Rs.20,000 as compensation to the complainant as required under section 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 file d a complaint dated 24th March, 2008 under sections 3, 6, 7 and 8 of the
Illegal Dispossession Act, 2005 against one Javed Sikandar (the then Managing Director of
Bolan Casting Ltd.); wherein it was alleged that the complainant was the proprietor of M/s.
Abbas Spinning and Weaving Mills, who purchased in auction the property of Bela Engineering
Ltd. from the Official Assignee of Sindh High Court falling 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 Labella, measuring about 4L9 acres. It was further alleged that
prior to Bela Engineering Ltd, the aforesaid property was granted to M/s. Ghandara Industries
Ltd. by the Government of Balochistan by means of agreement dated 10th February, 1970. The
representative of the Official Assignee, High Court of Sindh Karachi, after purchase, has handed
over the vac ant possession of the property in question to the complainant without any
interruption. He further averred that since the complainant is residing at Karachi, therefore, in his
absence, some persons, including the respondent Javed Sikandar, have illegally o ccupied 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 submission of the inquiry by the SHO police station, Hub,
the trial Court has taken cognizance of the matter. The complainant/respondent, to substant iate
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 clos e of parties' evidence, vide
impugned judgment, convicted and sentenced the appellant, as mentioned hereinabove, 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 Saba. Durrani, Deputy Prosecutor
General, representing the State and also perused the record 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 Castings 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 t he owner or occupier did not level the
allegation of his dispossession or forcible occupation of accused over 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 whatsoever 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, appearing on behalf of the
respondent/complainant and Mr. Abdul Sattar Durrani, Deputy Prosecutor General, representing
the State, contended that suffici ent 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 order 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.
4. There is no cavil to the proposition that 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 other 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.
The perusal of record reveals 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 w as
found in possession of an access of area of about 4 acres of land belonging to the complainant
Agha Atif Hussain. The record also indicates that on 26th January, 2009, one Hafeez -ur-
Rehmatn, 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 Nos.102/1, total area measuring 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 herein below the memo of possession EX -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, situated at Hub Chowki, Di strict Lasbella, Balochistan
being property in J. Misc. No.13 of 2000 (M/s. Engineers Limited . In liquidation) to Mr.
Altaf Hussain Agha son of Raza Hussain Agha, Proprietor of M/s. Abbas Spinning
Wearing."
7. A careful perusal of the ocular account fur nished by then complainant's witnesses and quoted
portion of Ex.P/3- B and EX -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 are a, 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 property, 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 extent, 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 had 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 hold criminally liable
under t he 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 somethin g 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. 02/2007, instituted under the Act by the same
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
o the appellant, despite the fact that his name was inserted in the complaint after its institution,
that too without any legal justification. Thus, the conviction and sentence awarded t o 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 bound stands discharged.
The appeal., with above modification in the impugned judgment, is, accordingly, disposed of..
H.B.T./79/Q Order accordingly.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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