GHAZANFAR ALI vs M. ZAHID HUSSAIN and others

SH. AHMAD FAROOQ, J.--- Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside the judgment dated 5-3-2007, whereby the trial conducted by the learned Additional Sessions Judge, Gujranwala, in a complaint under section 3 of the Illegal Dispossession Act, 2005, filed by the present petitioner, against the respondents Nos.1 and 2, has culminated into their acquittal from the charge levelled in the said complaint.

2. During the course of hearing of the instant petition, the learned counsel for respondents Nos.1 and 2 while objecting to the maintainability of the present petition contended that under section 9 of the Illegal Dispossession Act, 2005, the provisions of Criminal Procedure Code are applicable to.

The proceedings under the aforesaid Act. The learned counsel thus, contended that an appeal against acquittal ought to have been filed instead of this constitutional petition. The learned counsel next contended that the instant writ petition, which is on A criminal side, could not have been filed through Pervaiz Akhtar, son of Fazal Karim, who claims to be special attorney of the petitioner. In support of his arguments, the learned counsel for respondents Nos.1 and 2 has relied upon cases of Mian Bahadur Jan v. The State (PLD 2009 Peshawar 70) and Quaid Johar v. Murtaza Ali and another (PLD 2008 Karachi 342).

4(sic.) The learned counsel for the petitioner in reply to the arguments advanced by the learned counsel for respondents Nos. 1 and 2 contended that the Illegal Dispossession Act, 2005 is a special law and there being no provision qua the right of appeal, the present petition is maintainable before this Court. As regards the objection of filing of the instant petition through the special attorney of the actual complainant/Ghazanfar Ali, the learned counsel contended that in the instant petition, the petitioner has prayed for restoration of the possession of the disputed property, which is a civil right and the same can be pursued even through a special attorney.

5. Arguments heard. Record perused.

6. No doubt, there is no specific provision in the Illegal Dispossession Act, 2005, granting right of appeal to any party aggrieved by order passed under section 3 of the Act ibid. However, it is a settled principle of law that right of an appeal is presumed to be part of a B statute, even if it is not specifically mentioned in the relevant law. In the case of Yafas v. The State and others (PLD 2007 Pesh. 123), it has been held that right of, at least, one appeal against any order is an undoubted established principle and practice of criminal justice. The application of the Criminal Procedure Code in the proceedings conducted under the Illegal Dispossession Act, 2005 and filing of appeal under the said Code has been discussed in the case of Mian Bahadur Jan v. The State and another (PLD 2009 Peshawar 70). It has been held in the cited case that the word "proceedings" used in the Illegal Dispossession Act, 2005 could not be given different and restricted meaning to exclude right of appeal and revision, especially, when there was no express barring clause in the Act. It has been further held that right of appeal against conviction, right of appeal against acquittal and right of revision were available to the aggrieved person litigating under the Illegal Dispossession Act, 2005.

7. Through the instant petition, the petitioner has challenged the acquittal of respondents Nos. 1 and 2 and setting aside the judgment of a Court of criminal jurisdiction. It is not a simple matter of restoration of possession of a house or a matter involving civil rights, rather, it is substantially a criminal lis, which cannot be agitated or defended through a special attorney as has been held in the case of Quaid Johar v. Murtaza Ali and another (PLD 2008 Karachi 342). The instant petition on this score is also not maintainable.

8. For the foregoing reasons, it is held that the present petition is D not maintainable and the same is accordingly, dismissed.