SHAHABUDDIN Versus State

IFTIKHAR MUHAMMAD CHAUDHRY, C J .---This petition for leave to appeal has been filed against the judgment dated 22nd December, 2009 passed by High Court of Sindh, Karachi whereby Criminal Appeal filed by the petitioner has been disposed of with modification in the quantum of his sentence.

2. Facts in brief, relevant for disposal of instant petition, are that a complaint was lodged by one Muhammad Iqbal (complainant),before the District & Sessions Judge (East), Karachi to the effect that the complainant was the legal and lawful owner of property bearing plot No.A-288, Sector 6-H, Korangi Township, Karachi, measuring 240 Sq. Yards, purchased by him vide allotment letter dated 14th June 2004, from the original allottee, Shahid Mustafa, through his duly authorized attorney Sher Gul; he used to visit and look after his plot once or twice in a month; however, he remained out of Karachi for four months and when on 1st March 2006 he returned back to Karachi and visited the site of his plot, he was surprised to see that the boundary walls were being constructed on his plot and a gate was also installed thereat; on enquiry it revealed to him that the construction was being made on the direction of one Shahabuddin (petitioner), who trespassed into his property; the complainant was asked by the petitioner to contact Ch. Yaqoob, who later on, transpired to be a member of a Qabza Group. The complainant at the first instance approached the concerned police authorities but to no avail, as such he filed the above said complaint with the prayer to the Court to take cognizance of the offence under section 3(1) and (2) of the Illegal Dispossession Act, 2005 [hereinafter referred to as `the Act, 2005'] and to punish the petitioners/accused with direction to the concerned police authority to eject him from the plot by putting the complainant in peaceful physical possession of the same. On receipt of complaint, the Court directed the police to conduct investigation. Consequently, SIP Shams-ud-Din Dahri vide report dated 24th April, 2006 concluded that the document in possession of the petitioner in respect of the disputed plot were forged and fabricated. After receipt of the said report, the Court took the cognizance of the matter, recorded evidence and ultimately vide its judgment dated 12th October, 2009, convicted the petitioner under section 3(2) of the Act, 2005 and sentenced him to undergo 10 years' R.I. with fine of Rs.50,000/-, in default whereof to undergo further R.I. for three months, with further direction to pay Rs.50,000 as compensation to the complainant in view of the provisions of section 544-A, Cr.P.C. It was also directed to handover possession of the plot in dispute to the complainant. Being aggrieved by his conviction/sentence, the petitioner approached the learned High Court by filing Criminal Appeal, which has been disposed of by means of impugned judgment dated 22nd December, 2009, whereby, while maintaining the conviction of the petitioner, his sentence was reduced from 10 years' R.I. to that of three years' R.I. with reduction in fine from Rs.50,000 to Rs.10,000. Hence this petition for leave to appeal.

3. Learned counsel appearing for the petitioner argued that conviction/sentence awarded to the petitioner is unwarranted under the law as the case set up against him under section 3 of the Act, 2005 was not legally justified because according to the object and purpose of the Act, 2005, it deals only with the land grabbers, whereas, petitioner is a law abiding citizen, having been illegally dragged in baseless litigation. He relied upon the judgment in Zahoor Ahmad v. The State (PLD 2007 Lahore 231). According to him the Courts below have failed to take notice of the fact that the petitioner is a bona fide purchaser of the plot in dispute vide registered sale deed dated 11th December, 2000 from one Muhammad Yaqoob, who was lawful transferee of the plot from Karachi Development Authority, therefore, the question of illegal dispossession of the complainant does not arise. He further stated that as the petitioner was owner-in-possession of the plot in dispute since 2000, therefore, the provisions of the Act, 2005 are not applicable upon his case for the reason that it cannot. be applied retrospectively. In this behalf he relied upon the judgment in Muhammad Safdar v. Edward Henry Louis (PLD 2009 SC 404).

4. On the other hand, learned Additional Prosecutor General Sindh strenuously opposed the contentions of the learned counsel for the petitioner. She referred to the statement of Abdul Rahim Solgani (C.W.1), an officer of City District Government, Karachi, to prove the petitioner to be a land grabber. According to her the impugned judgment being just and based upon proper appreciation of evidence, do not admit interference by this Court.

5. We have heard the learned counsel for the petitioner as well as the learned Additional Prosecutor General Sindh and have carefully gone through the impugned judgment and the available record with their able assistance.

6. The petitioner claimed to be the owner-in-possession of the plot in dispute since 11th December, 2000, purchased by him from one Muhammad Yaqoob, who, according to him, was the lawful transferee of the plot from Karachi Development Authority vide indenture of lease dated 7th November, 2000. Contrary to it, the claim of the complainant Muhammad Iqbal is that he was owner-in-possession of the plot in dispute, duly purchased by him from the original allotee Shahid Mustafa through his attorney Sher Gul. In order to ascertain the truthfulness of both the claims, the trial Court, in addition to the PWs., also examined Mr. Abdul Rahim Solgan, Official of City District Government, Karachi, as C.W.1, who in his examination-in-chief supported the claim of the complainant by stating that the said plot was originally allotted to one Shahid Mustafa, who transferred the same through his attorney, Sher Gul, to Muhammad Iqbal (complainant) vide transferred letter dated 14th June, 2004. During his cross-examination he stated that said plot was never transferred or mutated to a person namely Muhammad Yaqoob, Moreso, the petitioner in his cross-examination also admitted that no mutation had taken place in the name of Muhammad Yaqoob from whom, as per his claim, he had purchased the said plot; even he did not know whether the plot belong to Muhammad Yaqoob or not and whether he was allottee or not. Additionally, it may also be noted that the petitioner, in order to prove his claim, he failed to produce Muhammad Yaqoob and Sajjad, from whom and through whom, he, statedly, purchased the property. While dealing with this aspect of the case, the learned High Court concluded that "the complainant was lawful owner of the plot and the accused without lawful authority assumed possession of the plot, while the complainant was absent from Karachi; such assumption of possession in cases of constructive possession would amount to dispossession; therefore, on merit the accused has been fairly and squarely without any iota of doubt proved guilty of an offence under section 3(1) and (2) of the Illegal Dispossession Act, 2005". Such findings of the learned High Court cannot be interfered with, unless any misreading or non-reading of the evidence on record has been shown, which the petitioner has failed to point out in the impugned judgment.

7. Now adverting to the next contention of the learned counsel regarding retroactive applicability of the Act, 2005. In this behalf it may be noted that although the plot in dispute was transferred in the name of complainant in the year 2004 but the same remained in his constructive possession till March, 2006 when the petitioner trespassed into his possession and started raising construction over it. Even, it is nobody's case that the act of trespassing or illegal dispossession was committed by the petitioner prior to promulgation of the Act, 2005 i.e. 17th July, 2005, however, it was only contended by the learned counsel that the petitioner purchased the said plot in 2000, therefore, he cannot be subjected to the provisions of the Act, 2005. The judgment relied upon by the learned counsel in this behalf in Muhammad Safdar's case (supra) is of no help to him because in that matter the parties had instituted the civil suits with regard to the disputed property and the matter had become sub judice well before the promulgation of the Act, 2005, whereas in the instant case the act of trespass was admittedly committed after the promulgation of the Act, 2005. In this behalf reference can safely be made to the case of Rahim Tahir v. Ahmed Jan (PLD 2007 SC 423) wherein it has been held that "there is no cavil to the legal proposition that Illegal Dispossession Act, 2005 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 above Act but if the case of an illegal occupant was not already pending before any other forum on the date of enforcement of this Act, the same would squarely fall within the ambit of this Act." It is further observed that "the expression grab, control or occupy used in section 3 of the Act cannot be restricted to the illegal occupants who entered into the premises subsequent to the promulgation of the Act rather all cases of illegal and unauthorized occupants would be subject to the Illegal Dispossession Act, 2005, except the cases which were pending adjudication before other forums".

8. So far as the contention of the learned counsel that the Act, 2005 is meant for the land grabbers, whereas the petitioner is not a land grabber, is concerned, this argument is also not available to him for the reason that he had failed to prove his lawful ownership over the property in dispute. Moreso, the Act, 2005 is a special enactment, promulgated to discourage the land grabbers and to protect the rights of owner and lawful occupants of the property as against the unauthorized and illegal occupants. Learned High Court, in the impugned judgment, has elaborately discussed this aspect of the case and observed that "there is no requirement in the Act that one must have grabbed at least so many properties and only then he will be proceeded against; no doubt in the preamble, the words `land grabbers' have been used and they have been used in the plural, but firstly the preamble though it must be given due weight, it does not have the same weight as the word used in the Act .Therefore, for prosecution under the Illegal Dispossession! Act, 2005 even if an individual is illegally dispossessed, he has a right to have a recourse to the provisions of Illegal Dispossession Act, 2005 without prejudice to the such other remedies that may be simultaneously available to him under the other laws". In our considered opinion, these observations by the learned High Court are irrefutable and worthy of credence. Thus the arguments put forward by the learned counsel in this behalf are accordingly repelled. As far as the judgment in Zahor Ahmed's case, relied upon by the learned counsel for petitioner, is concerned, it cannot be referred to, as the same has been challenged before this Court in a petition wherein leave has already been granted.

9. In view of above discussion, we are of the considered opinion that the Courts below have rightly concluded that the petitioner is guilty of committing offence, falling within the mischief of section 3 of the Act, 2005, however, keeping in view the fact that he was a first offender and previously not involved in such like cases, the sentence awarded to him is reduced from three years' R.I. to that of one year's R.I. with direction to pay Rs.10,000 as compensation to the complainant under section 544-A, Cr.P.C. in default whereof to undergo one month's S.I. with the benefit of section 382-B, Cr.P.C.

Hereinabove are the reasons of our short order of even date.

N.H.Q./S-23/S Sentence reduced.