' DOST MUHAMMAD KHAN, J.---Petitioner has questioned the legality and vires of the order of learned Sessions Judge, Mardan dated 13-12-2005 taking cognizance on the complaint filed by the respondents, under section 5 of the Act XI, 2005 (Illegal Dispossession Act, 2005).
' Arguments heard and record perused.
2. The main contention of the learned counsel for the petitioner is that in respect of the same dispute, suit for mandatory/permanent injunction has been filed on 16-3-2005, by the respondents, in the civil Court which is still pending disposal and that the date of the so-called illegal dispossession of the complainant has not been given in the complaint rather it has been alleged in unequivocal words that the petitioner is going to dispossess the complainants/respondents by force and that the petitioner had made attempts to cut the sugarcane crop thus, in view of the learned counsel, the cognizance taken on the complaint is without lawful authority because the Illegal Dispossession Act, 2005, was notified in the Gazette of Pakistan, Extraordinary, Part I, on 7th July, 2005 and because the Act XI, 2005 provides punishment if a man is found guilty of the act of illegal dispossession of another thus, both under the Statutory Law as well as under Article 12 of the Constitution of Pakistan, 1973, the penal provision of Act XI cannot be given retrospective effect. He further argued that the history of civil litigation about the dispute clearly reveals that, the threatened act, which has not yet taken place, pertains to the period when the Act XI, 2005 was not in the field hence, pressing into service the provision of the said law offends the provision of Article 12 of the Constitution thus, the impugned order is not sustainable on any legal premises.
3. Learned Counsel appearing on behalf of the State, supported the stance taken by the learned counsel for the petitioner and submitted that mere threat of illegal dispossession would not constitute an offence under section 5 of the Act 2005 (Act XI) and that otherwise, the provision of the act have not been given retrospective effect.
4. To the contrary, learned counsel for the complainants/ respondents while relying on the view taken by the Hon'ble Supreme Court in Rahim Tahir v. Ahmad Jan PLD 2007 SC 423 contended with vehemence that although civil suit was pending before the promulgation of Act XI of 2005, but the relief sought therein, was for permanent/mandatory injunction and it was during pendency of that suit that the respondent-complainant was dispossessed, therefore, the complaint filed under the Act was rightly entertained by the trial Court and the impugned order does not suffer from any illegality muchless jurisdictional defect/infirmity.
5. The principle of law enunciated by the Hon'ble Supreme Court, in my humble view, is not supporting the case of the respondent-complainant because their lordship have held in unequivocal terms that the provisions of the Act XI of 2005 shall not take effect retrospectively when on the same subject-matter a case was pending before any other forum prior to the promulgation and notification of the Act while to the contrary when no such lis was pending then, in that case the provision of the Act XI of 2005 can be pressed into service.
6. The Illegal Dispossession Act (Act XI of 2005) was notified on 7th July, 2005 and under subsection
(3) of section 1 thereof, it shall come into force at once. On plain reading, the provisions of the Act XI of 2005, the same have not been given retrospective effect either impliedly or expressly by the legislature. Under section 4 of the Act for trial of complaints with regard to the Illegal Dispossession or/and grabbing of property a forum with exclusive jurisdiction has been constituted/provided, which is, a Sessions Court.
' Besides the conviction and sentencing of the accused up to 10 years' R.I. Under section 3 of the Act, the machinery pro visions i,e, sections 6, 7 and 8 of the Act also provide that upon such conviction, the Court shall forthwith evict the illegal occupier of the properly and shall hand over possession thereof, to the complainant and that the Court has been further authorized to pass an interim order either attaching the property or handing over possession of it to the complainant pending disposal of the complaint. These provisions certainly are of a semi penal nature as the same authorizes the Court to deprive an occupier of land at preliminary stage without having any solid proof/evidence to that effect.
7. The provision of sub-Article (2) of Article 12 of the Constitution provides an iron clad protection against punishment of an act or omission committed by any person which was not punishable by any law at the time of the act or omission. For convenience sake the same is reproduced as follows:-- "12. Protection against retrospective punishment.---(1) No law shall authorize the punishment of a person---
(a) for an act or omission that was not punishable by law at the time of the act or omission."
The punishment by way of imprisonment provided under subsection (2) of S.3 of the Act may extend to 10 years with fine and the victim of the offence is also to be compensated under section 544-A of the Code thus, seen from this perspective if offence of criminal trespass under section 447, P.P.C. Is considered to be the law relating to the punishment of such offence/offences which is in vogue since long, the enhanced punishment provided under the new law is squarely hit by the prohibitory command of sub-Article (1) of Article 12 of the Constitution. In the case of Abdul Rehman v. The State 1978 SCM R 292, the Hon'ble Supreme Court has dealt with similar issue wherein, the sentence of transportation for life which means 20 years of imprisonment was altered through the change of "expression' to life imprisonment entailing 25 years of imprisonment. The apex Court did not allow the sentence of more than 20 years as the offence was committed before the alteration of the expression.
True, that the legislature has unfettered powers to make laws with retrospective effect which include substantive law and law of procedure, however, Article 12 sub-Article (1) of the Constitution have imposed clear restrictions on the powers of the legislature to the effect that it cannot make law to punish acts or omissions of the past which by then were neither declared offences by law nor any punishment was provided therefor. The only exception created is under sub-Article (2) which cover the offence of high treason. Similarly, the same Article prohibits giving retrospective effect to any new enactment which enhances the punishment for the offence from the one which was provided for the same offence under the law prevailing at the time when the offence was committed.
' Article 20(1) of the Indian Constitution almost provides similar protection but the one provided by Article 12 of our own Constitution is much wider in scope in this regard. Even under the American Jurisprudence the making of ex post facto laws are prohibited. Justice Blackstone, has briefly but squarely explained the fact and impact of penal ex post facto laws in the following words:- "After an action indifferent in itself, is committed, the legislature then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible, that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore, no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust" See the case of Philips - Vs - Eyre 1870-6-QB-1.
8. The established proposition on record is that the parties are locked in civil litigation and a complaint under section 145, Cr.P.C. Was also filed before the Illaqa Magistrate. In the present complaint filed under section 5 of the Act XI of 2005, in (para-12) it has been squarely mentioned that the present petitioner/accused being a desparate person is bent upon to take possession of the land forcibly, the conclusion an inescapable one thus, would be that on 27-10-2005 when the complaint was drafted and was then filed in the trial Court, the act complained of has not yet taken place and if at all it had taken place, that must be earlier to the date of commencement of the new law because civil suit on the subject was already pending before the Civil Judge concerned. The respondents-complainants could seek remedy from that Court by amending the plaint and may also apply for appointment of local commission for demarcation/measurement of the land to ascertain the actual position as to whether the land which the respondents claim to be their ownership with possession has been encroached upon by the petitioner or not and on this preliminary issue, keeping in view the provision of Order XVI of the C.P.C. The entire case can be disposed of by the Civil Court if so approached in the manner highlighted above.
9. In view of the above facts, circumstances and the legal position emerging, therefrom, there cannot be two opinions that the cognizance taken and jurisdiction exercised by the trial Court under Act XI of 2005 is ab initio void because it is hit by the prohibitory command contained in Article 12 of the Constitution and is also unwarranted in view of the universal principle of law that no enactment shall have retrospective effect which provides punishment for an act or omission which was not declared an offence by any law then in vogue when the same was committed nor the legislature can enact any law retrospectively which enhances punishment for an act or omission which was punishable with lesser penalty when it was committed.
10. It has been judicially noticed that the learned Sessions Judges at random lay hand on the provision of section 5 of Act XI of 2005 once complaint is filed without looking at the matter with a depth of judicial mind as to whether the case is of a civil nature and the speedy remedy provided to the aggrieved person for the redressal of his grievance under section 9 of the Specific Relief Act is more appropriate and equally efficacious thus, at the whims of certain individuals the effective provision of law which is century old one is circumvented in a manner unwarranted by law. It is foremost obligation of the learned trial Judges to apply their judicial mind to the facts of each individual case and to judicially determine as to whether allegations made in the complaint constitutes an offence under the new law or the matter must be tried by the Civil Courts under sections 8 and 9 of the Specific Relief Act.
' Not only, the preamble Of Illegal Dispossession Act (XI of 2005) but also S.3 thereof has provided expressions "to grab, to control or to occupy" which is a clear manifestation of the intent of the Law Makers in curbing the illegal activities of the land grabbing Mafia which had assumed a monstrous character in the last more than two decades thus, the new law shall not be pressed into service by the. Courts in ordinary cases of dispossession or recovery of possession which squarely falls within the ambit of civil disputes and can be effectively regulated and the grievance can be redressed under section 9 or 8 of the Specific Relief Act. In the present case, in view of the established facts on record, the proceedings taken, the complaint entertained and the jurisdiction exercised by the learned Sessions Judge in view of the above legal position, is corum non judice thus, are liable to be set at naught. The respondents/complainants, if so advised, may get speedy remedy from the civil Court in light of the observations recorded above.
' Accordingly, this petition is allowed, the impugned order of the trial Court is set aside and the complaint filed by the respondents-. Complainants is dismissed.