Captain S. M. ASLAM vs THE STATE and 2 others

ORDER

1. ' SAJJAD ALI SHAH, J.---This Criminal Revision arises from the order dated 2-11-2005, passed by the District Judge Karachi (East) whereby private complaint filed by the applicant under section 3(2) of the Illegal Dispossession Act, 2005 was dismissed without examining the coplainant on Oath.

2. ' The brief facts for the purpose of determining this revision are that the complainant claims to be the owner of a commercial plot bearing No,SB-11, measuring 150 Sq. Yds. Situated in the Karachi Divisional Commissioner Society Scheme 33, Karachi. It is alleged that the Respondents Nos.2 and 3 somewhere in the year 1996 have extended illegal construction of Madarsa from their side and have encroached upon the plot of the applicant by forcefully dispossessing him from his own property. The complainant consequently submitted complaint before the Hon'ble Ombudsman Sindh and various other authorities requesting them to remove the Respondents from his said commercial plot but to no effect, however the Ombudsman directed the applicant to approach the concerned Court of law and ultimately the applicant filed a complaint under subsection (2) of section 3 of the Illegal Dispossession Act, 2005.

3. ' First contention of the learned counsel for the applicant is that the learned District Judge upon filing of the present complaint was bound to examine the complainant on Oath under section 200 of the Code of Criminal Procedure and the dismissal of the present complaint without examining the complainant was a flagrant violation of the provision of section 200 of the Code of Criminal Procedure. It is next contended that the only ground which prevailed before the District Judge for dismissing the complaint in limine was that the Illegal Dispossession Act, 2005 (hereinafter referred to as the "said Act") has no retrospective application therefore an act of illegal dispossession which has taken place in the year 1996 cannot be taken cognizance of under the provisions of said Act.

4. The learned counsel has argued that since the Act does not specify that it has only prospective application therefore it would apply retrospectively and since the offence of illegal dispossession is continuing offence, therefore, provision of the "said Act" would be applicable. However, the learned counsel was not able to produce any case-law in support of his contentions.

5. ' In order to appreciate the first contention of the learned counsel for the applicant to the effect that upon filing of Criminal Complaint the Court is bound to record the statement of complainant under section 200 of the Code of Criminal Procedure. It would be appropriate to reproduce the relevant portion of section 200 of Cr.P.C.: "200. Examination of complaint.--A Magistrate taking cognizance of an offence on complaint shall at once examine the complaint upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate."

6. ' A careful perusal of the above section reveals that taking cognizance of an offence is a condition precedent to the recording of statement of complainant on Oath, meaning thereby if the Court is of the opinion that the complaint itself is not maintainable and no useful purposes would be served by recording statement of complainant it would not waste its time on an exercise which is futility.

7. The provisions of section 200, Cr.P.C. Do not suggest from any angle that upon institution of a private complaint the Court is mechanically bound to record the evidence of the complainant without looking into the contents of the complaint its maintainability, or without satisfying itself as to whether the act complaint to constitute an offence or not or whether the offence if any made out is within its competence. It must not be lost sight of that the purpose behind the exercise of preliminary proceedings by way of recording statement of the complainant is only to find out the truth or falsehood of the accusations levelled in the complaint and for the Court to satisfy itself before the accused is summoned. However by no stretch of imagination the provision of section 200 of Code of Criminal Procedure can be read in a manner to bound the Court to record the evidence despite the fact that accusations made in the complaint do not constitute an offence or the act complained of is not an offence at the time of occurrence. The learned counsel further failed to appreciate that section 5 of the "said Act" lays down a procedure to be adopted by the Court of Session upon a complaint and provides that upon a complaint the Court may direct the officer-in-charge of a Police Station to investigate and complete the investigation and forward the same within 15 days to the Court. The word 'may' used in section 5 of the said Act is quite significant and leave a room for the court to satisfy itself as to the competence and maintainability of the complaint. In the circumstances the contention of the learned counsel is without substance and the learned District Judge did not commit any illegality by dismissing the complaint without recording statement of complainant.

8. ' In order to appreciate the second contention of the learned counsel for the applicant as to the retrospective application of the "said Act" it would be appropriate to reproduce the provision of section 3 of the "said Act".

9. "Prevention of illegal possession of property etc.---(1) No one shall enter into or upon any property to dispossess, grab,, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property.

(2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code."

10. ' Subsection (1) of section 3 forbids any person from entering into or upon any property with the intention to dispossess, grab, control or occupy any property from its owner or occupier, whereas subsection (2) of section 3 provides that any person who contravenes the provision of subsection

(1) of section 3 shall be liable for a punishment of imprisonment which may extend to ten years and with fine and also provide compensation to the victim in accordance with section 544-A of the Code. The punishment provided in subsection (2) of section 3 is beside and without prejudice to any punishment provided under any other law.

11. ' The Illegal Dispossession Act of 2005 had received the assent of the President on 30th June, 2005, and was published in the Gazette on 7th July, 2005. Subsection (3) of section 1 of the "said Act" provides that it shall come into force, at once. The act to dispossess the owner or occupier of any property with the intention to grab, control or occupy it without any lawful authority was made an offence through the newly enacted law. Consequently, an act or omission which was not punishable offence at the time when it was committed cannot by retrospective application of law be made punishable. The argument that the said Act is retrospective as it does not provide for prospective application even otherwise is fallacious and not only against the settled principles of law but against the provisions of Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973, which specifically protect against retrospective punishments and provides that no law shall authorize the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission; or for an offence by a penalty greater than or of a kind different from the penalty prescribed by law for that offence at the time the offence was committed, consequently, the provision of "said Act" cannot be extended to an act of illegal dispossession as envisaged in subsection (1) of section 3 if taken place prior to the promulgation of "Said Act".

12. ' The contention of the learned counsel that since the act of illegal dispossession is a continuing offence therefore, it can be, taken cognizance of under the provision of "said Act" despite such dispossession has taken place prior to the promulgation of the "said Act" is also without substance as perusal of subsection (1) of section 3 reveals that it is the "Act of entrance" upon the property of someone with the intention to dispossession, grab, control or occupy such property from its owner or occupier is made punishable under subsection (2) of section 3 of the "said Act" and not the act of retaining illegal possession of any property, consequently, in order to attract the application of "Said Act" the act of entering upon the property of someone with the intention to dispossess, grab, control or occupy such property from its owner or occupier must have taken place on/or after 7th July, 2005, the day when the said Act was published in the official Gazette.

13. ' In the circumstances, no case for interference with the impugned order dated 2-11-2005 is made out. This Revision consequently fails and is hereby dismissed.

14. Revision .