MUHAMMAD SHARIF Versus Haji NOOR MUHAMMAD alias HAJI NOORO
FAHIM AHMED SIDDIQUI, J.--- The instant criminal acquittal appeal is filed to question the legality and propriety of impugned judgment dated 27-02-2015, passed by the learned Additional Sessions Judge-I, Badin in Cr. Complaint No. 43/2011. Through the impugned judgment, the learned trial Court has acquitted the respondents after full dressed trial in a complaint under Illegal Dispossession Act, 2005 (hereinafter referred as IDA) preferred by appellant against them.
2. In the instant matter, the notices have been served upon the respondents and an advocate has already filed power on their behalf but subsequently, he did not appear to defend them. On 15-10-2018, an intimation notice was issued to the counsel for the respondents as well as a direct notice to them through SHO concerned. As no one was present for respondents; therefore, it was heard and decided on the basis of available record.
3. The contextual setting of the case is that the appellant claims to be owner of certain agricultural lands, bearing survey numbers mentioned in the memo of instant acquittal appeal. As per appellant, the said agricultural lands were purchased by him through registered sale deed dated 24-10-2009 and got possession from the previous owner and it started development of the said land. However, his efforts of development were hindered by some interested persons, who filed a suit for pre-emption which was dismissed. Subsequently, one Muhammad Omar Mallah preferred appeal, which was also dismissed. It is the contention of the appellant that after the failure of the efforts of establishing the right of pre-emption, the aforesaid interested persons patronized the respondents, who on their instigation and behest illegally occupied 12-13 Acres comprising Survey Nos. 295 and 296 on or about 07-05- 2011. As the respondents, have illegally dispossessed the appellant from a portion of his land, he filed a complaint under IDA, in which cognizance was taken but after trial the respondents/accused were acquitted through the impugned judgment.
4. I have heard the arguments advanced and have gone through the available record and cited case laws.
5. The contention of the learned counsel for the appellant is that the impugned judgment is not proper and far from the settled legal principles. According to him, the reasons given by the trial Court, in the impugned judgment, are contrary to the opinion of superior Courts especially Honorable Supreme Court of Pakistan. According to him, the trial Court acquitted the respondents solely on the ground that the case of illegal dispossession can only be made out if the act of dispossession is being done by land grabbers. He submits that the trial Court opined that no evidence has come on the record that the respondents are land grabbers, and they remained Haris of the appellant in the past, as such, they were acquitted. According to him, now the law has been developed up to the extent that any sort of illegal dispossession may come under the ambit of IDA. He submits that the respondents were Haris of the appellant for a period of three years, which was ended in the year 1999, as such, they cannot be considered as tenant or Haris of the appellant. In support of his contentions, he relies upon PLD 2007 Supreme Court 423, PLD 2008 Supreme Court 725 and 2016 SCMR 31.
6. The learned DPG submits that the reasons given by the trial Court appears improper and contrary to law, as such, the impugned order is required to be set aside and matter is remanded for writing judgment afresh.
7. I have scanned the impugned judgment in the light of valued submissions made before me. The learned trial judge at the time of passing impugned judgment has relied upon a case of Lahore High Court reported as Zahoor Ahmed and 5 others v. The State (PLD 2007 Lahore 231) and after discussing the said reported judgment, the trial Court acquitted the respondents on the ground that the possession of respondents cannot be termed as illegal. In the judgment of Zahoor Ahmed (supra), it is observed that a complaint under IDA cannot be entertained if the possession of the property is being regulated by Civil or Revenue Court. It is worth mentioning that lots of water has flown beneath the bridges and now it is settled that every sort of illegal dispossession creates a ground for invoking the jurisdiction of courts dealing with criminal cases by filing a complaint under IDA. In this respect, reliance may be taken from the judgment of apex Court reported as Shaikh Muhammad Naseem v. Mst. Farida Ghul (2016 SCMR 1931) wherein it is held as under:-
"7. From what has been discussed above it is evident that no provision of the Illegal Dispossession Act, 2005 imposes any precondition on the basis of which a particular class of offenders could only be prosecuted. The act aims at granting efficacious relief to lawful owners and occupiers in case they are dispossessed by anyone without lawful authority. Section 3(1) of the said Act by using the terms 'anyone' and 'whoever' for the offenders clearly warns all persons from committing the offence described therein and when found guilty by the Court are to be punished without attaching any condition whatsoever as to the maintainability of the complaint. So all that the Court has to see is whether the accused nominated in the complaint has entered into or upon the property in dispute in order to dispossess, grab, control, or occupy it without any lawful authority. Nothing else is required to be established by the complainant as no precondition has been attached under any provision of the said Act which conveys the command of the legislature that only such accused would be prosecuted who holds the credentials and antecedents of 'land grabbers' or 'Qabza Group'. It does not appeal to reason that for commission of an offence reported it the complaint filed under the Illegal Dispossession Act, 2005 the Legislature would intent to punish only those who hold history of committing a particular kind of offence but would let go an accused who though has committed the offence reported in the complaint but does not hold the record of committing a particular kind of offence. In our view trial of a case is to be relatable to the property which is subject matter of the complainant, pure and simple. Any past history of the accused with regard to his act of dispossession having no nexus with the complaint cannot be taken into consideration in order to decide whether the accused stands qualified to be awarded a sentence under the Act or not. Once the offence reported in the complaint stands proved against the accused then he cannot escape punishment under the Illegal Dispossession Act, 2005."
8. In view of above settled legal position, it becomes evident that the ground taken by the trial Court at the time of passing impugned judgment is not sustainable under the law, hence, the impugned judgment is set aside and matter is remanded to the trial Court with direction to pass a fresh judgment after affording opportunity of hearing to the parties. It is further directed that if the surety documents have been returned then fresh surety bonds be executed by the respondents and after furnishing of surety bonds, the trial Court should decide the matter expeditiously and preferably within a period of one month after receipt of this judgment. The above are the reasons for my short order dated 05.11.2018.
SA/M-82/Sindh Case remanded.