It is a revision petition for setting aside the judgments/orders passed by Maga Qazi (Criminal)
Upper Dir dated 25.6.1999 and the learned Additional Sessions Judge/Izafi Zilla Qazi, Dir (Upper) dated 4.1.2000.
2. The brief history of the case is that Dildar Ali, SDO Highway C&W Department, Respondent No, 2 registered a case against the petitioner under Section 447/431 PPC vide F.I.R. No, 199 dated 31.8.1998 Police Station, Dir that he had encroached upon a piece of land within the boundaries of the Road owned by the Government through C & W Department. Challan was submitted before the trial Court who examined the prosecution witnesses. The petitioner while giving his statement u/S. 342 Cr.P.C. denied the allegations. After the evidence and arguments the learned trial Court acquitted the petitioner u/S. 431 PPC but convicted him u/S. 44.7 PPC and sentenced him to 15 days SI with a fine of Rs, 200/- or in default to undergo further ten days S.I. vide judgment dated 25.6.1999. The petitioner not contented with the above order of the trial Court preferred an appeal before the ASJ/Izafi Zilla Qazi Dir (Upper) which was also dismissed by him vide judgment dated 4.1.2000. The State had also filed revision petition for enhancement of the sentence awarded to the petitioner but the same was also dismissed through the one and the same order dated 4.1.2000.
3. Learned counsel for the petitioner advanced that the petitioner was acquitted of the charge u/S. 431 PPC, therefore, he could not be convicted and sentenced u/S. 447 PPC besides the legal proposition that under North-West Frontier Province Public Property (Removal of Encroachment)
Act, 1977 for the purpose of encroachment upon the government land, a Tribunal is constituted and the Tribunal is competent to adjudicate upon such like matters. The very cognizance taken by the trial Court and also not understood by the ASJ/Izafi Zilla Qazi was an illegal exercise and without jurisdiction on the part of both the Courts below.
4. Mr. Imtiaz Ali, learned Addl. Advocate General for the State, however, frankly conceded that there may be competency of the Tribunal under the Act ibid but in case where ingredients u/S. 447/431 PPC attracted, the criminal proceedings can be initiated and the learned Maga Qazi can take cognizance if requirement of the above sections of law permits but in this case even the same are missing.
5. I have heard the learned 'counsel for the parties and have gone through the record of the case with their able assistance.
6. Under Section 12 of N.W.F.P. Public Property (Removal of Encroachment) Act, 1977 a Tribunal is constituted who has exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any leases or licence in respect of such public property has not been determined for the purpose of the above Act. Under Section 3 of the Act supra, if Government, or any authority or officer authorised by Government in this behalf, is satisfied that any person is an unauthorised occupant, it or he may, by order in writing, direct such person to vacate the public property and to remove the structure, if any, raised by him on the public property, within such period as may be specified in the order; provided that such period shall not be less than three days. Punishment is also provided in the above Act that any person who has made encroachment shall be punished with imprisonment of either description for a term which may extend to six months or with fine which may extend to three thousand rupees or with both.
7. In view of the above it is ununderstandable that when a proper remedy was available, the Tribunal is in the field, illegal proceedings were initiated by the trial Court and upheld by the learned ASJ/Izafi Zilla Qazi, when otherwise there is no such material against the petitioner which warrants the trial under Sections 431 & 447 PPC, and to proceed with such dispute.
8. In the wake of above, this criminal revision is accepted, the whole exercise carried out by the Courts below is declared to be illegal, void and without jurisdiction, the judgments/orders dated 25.6.1999 and 4.1.2000 passed by Illaqa Qazi (Criminal) Upper Dir and ASJ/Izafi Zilla Qazi, Dir (Upper) are set aside and the petitioner is acquitted of the charges levelled against him. However, if there is any encroachment on the part of the petitioner on the government land/public property the concerned Department who owned the said property may move the Tribunal constituted under Act-V of 1977 under the law.