' KHAWAJA MUHAMMAD SHARIF, J.--- Through this petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has challenged the impugned judgment dated 25- 9-2006 passed by the learned Additional Sessions Judge, Gujranwala (the learned trial Judge seized of the matter under the Illegal Dispossession Act, 2005), whereby he has dismissed petitioner's complaint filed against the respondents under section 3 of the Illegal Dispossession Act, 2005.
' The facts leading to the filing of this constitutional petition are that a house measuring 14 Marlas bearing Khewat No,39, Khatoni No,108-122, situated at Mauza Kot Bilal, Tehsil Noshera Virkan District Gujranwala was purchased by one Karam Hussain, petitioner's sister (Kubra Bibi's) husband, in 1986 through a registered sale-deed, the said Karam Hussain left his wife and children, left Pakistan and started living in U.K., he died on 18-6-2005, so, the said house became the property of the above mentioned sister of the petitioner and her children, petitioner's sister in question along with her children also left for U.K. Whereafter petitioner became custodian of the captioned house coupled with its occupation. It is alleged in the complaint that on 19-12-2005 present respondents Nos.2 to 5 took forcible possession of the afore-referred house which led to the filing of a complaint by the petitioner under section 3 of the Illegal Dispossession Act, 2005 which was entrusted to Mr. Muhammad Tammer Hayat Gondal Additional Sessions Judge, Gujranwala, who recorded preliminary evidence, called report from the police and then dismissed the said complaint without having summoned the respondents vide order, dated 15-2-2006, upon which, petitioner filed Writ Petition No,4197 of 2006 calling in question the said order of the learned Additional Sessions Judge, it came up for hearing before this Court on 16-5-2006, was accepted and it was directed to the learned Additional Sessions Judge Gujranwala (the learned trial Judge seized of the matter under the Illegal Dispossession Act, 2005) to proceed with the trial of the complaint as required under the law i.e. Illegal Dispossession Act, 2005. The learned Additional Sessions Judge vide order, dated 25- 9-2006 after having completed the trial, dismissed the said complaint and acquitted the present respondents from the complaint case.
2. Learned counsel for the petitioner, assailing the above impugned judgment through the instant constitutional petition, contends that the main contention of the respondents is that they had purchased the said house from Karam Hussain in question on 27-4-2004 through an agreement to sell while contention of the present petitioner is that the house in question was taken into possession by the respondents forcibly' on 19-12-2005 and they were liable to be proceeded against under the relevant provisions of the Illegal Dispossession Act, 2005. Further contends that the said sale agreement which was allegedly executed between Karam Hussain and Shabbir Hussain respondent, was never produced during the trial of the instant complaint filed under section 3 of the Illegal Dispossession Act, 2005 coupled with the fact that not even the marginal witnesses of the alleged agreement to sell were produced. Adds that the 15/16 electricity bills were also produced by the petitioner before the learned Additional Sessions Judge, Gujranwala (the learned trial Judge seized of the matter under the Illegal Dispossession Act, 2005) from October, 2005 to December, 2005 which are available on the record of this file. Averred that there is neither any registered sale-deed regarding the house in question nor any mutation to the said effect in favour of the respondents which has falsified their claim. While concluding his submissions he argues that the respondents have committed offence under the Illegal Dispossession Act, 2005, therefore, they are liable to be proceeded against under the said law.
3. On the other hand, learned counsel for the respondents, while defending the impugned judgment of acquittal, submits that it is a second petition under section 3 of the Illegal Dispossession Act, 2005 as the earlier was dismissed, respondent Shabbir had purchased this house from Karam Hussain through an agreement to sell in lieu of Rs,4 lac, money was paid, possession was taken over on 27-4-2004, in fact petitioner was neither attorney nor was custodian of the said house, actually he had a house on the backside of the house in question, intervening wall was demolished by him and he trespassed into the house in question, took away belongings to the respondents on which a case vide F.I.R. No,302 of 2006 dated 26-6-2006 under sections 448/457, P.P.C. Police Station Tatley Wali, Gujranwala was registered against the present petitioner, respondent had also appeared as D.W.1 before the learned Additional Sessions Judge, a suit for specific performance was also filed against Kubra Bibi in question, her children and the present petitioner in which they filed reply through Arif son of Siddique which is on the record. Adds that the said Karam Hussain went to U.K. But thumb-marked the documents as he was an uneducated person, on the same day he had also entered into an agreement which was also thumb-marked by him. He has referred to a Full Bench judgment of this Court recently delivered in the case of Zahoor Ahmad and 6 others v. The State and 5 others PLD 2007 Lah. 231, especially subparas (ii) and (iii) of para.
7. While advancing his submissions learned counsel for the respondents further submits that during the pendency of a civil suit qua the subject-matter in question, no application under section 3 of the Illegal Dispossession Act, 2005 can be filed and if there is any application still lying with the learned trial Court, that shall be deemed to be dismissed.
4. While assisting this Court, the learned Additional Advocate-General Punjab Ch. Muhammad Hanif Khatana and Mr. Naseeruddin Khan Nayyar, the learned Additional Prosecutor-General, submit that F.I.R. No,302 of 2006 dated 26-6-2006 under sections 448/457, P.P.C. Police Station Tatlay Wali Gujranwala was found to be false, cancellation report was prepared which is pending with the D.S.P. Circle for verification; that electricity bills on the record produced by the petitioner show that the house in question was in occupation of the petitioner being real brother of widow of .Karam Hussain; that non-filing of suit for specific performance by the respondents upto the death of Karam Hussain till filing of the earlier complaint, also casts doubts about the veracity of the version of the respondents; that the factor of non-production of original agreement to sell and marginal witnesses also goes against the respondents; that change of attorney by the petitioner for filing reply to the suit for specific performance does not mean that the house was not taken into possession forcibly by the respondents and that the impugned judgment of acquittal is not sustainable in law.
5. I have heard learned counsel for the parties in a great length to their entire satisfaction. It is imperative to quote para.6 of the impugned judgment, dated 25-9-2006 passed by the learned Additional Sessions Judge, Gujranwala (the learned trial Judge seized of the matter under the Illegal Dispossession Act, 2005) which reads as under:- "(6) The complainant has stated that his brother-in-law and sister reside in England and he looks after the disputed house as its custodian. In cross-examination, he has admitted that Shabbir Hussain accused has filed a suit against the legal heirs of Karam Hussain and in that suit Mst.
Kubra Bibi etc. Have not arrayed the complainant as their attorney. That they have appointed one Muhammad Arif son of Muhammad Siddique, as their attorney in that suit. This fact shows that the complainant was not made custodian of house by owners. So, he is neither owner nor occupier of the house. The complainant has miserably failed to prove the charge against the respondents/accused. They are, therefore, acquitted of the charge. They are on bail, therefore, their bail bonds are also discharged. File be consigned to the record room after its due completion."
6. The dates in the instant case are very necessary for a just decision of the case. According to the respondent Shabbir, he had entered into agreement to sell with Karam Hussain deceased on 27-4- 2004, his thumb-impression has been shown under his name, till the death of Karam Hussain i.e. On 18-6-2005 no effort was made to get the alleged sale-deed registered. The agreement to sell, which is according A to the learned counsel for the respondents has created a title in favour of the respondent, was never produced before the learned Additional Sessions Judge Gujranwala (the learned trial Judge seized of the matter under the Illegal Dispossession Act, 2005). Even marginal witnesses were never produced to support case of the respondents. The date of occurrence given by the petitioner for taking illegal dispossession of the house in question is 19-12-2005, the petitioner filed the first complaint against the respondents on 28-1-2006 which was dismissed by the same learned Additional Sessions Judge on 15-2-2006 on the ground that Illegal Dispossession Act, 2005 is applicable only to "land grabbers". The said order was challenged before this Court in Writ Petition No,4197 of 2006, the said order was set aside vide this Court's order dated 16-5-2006 and the case was remanded back with a direction to the learned Additional Sessions Judge to proceed with the complaint filed by the petitioner and decide the same as mandated under the Illegal Dispossession Act, 2005. The suit for specific performance was filed after passage of the first order of dismissal of the complaint by the learned Additional Sessions Judge dated 15-2-2006 while the suit was filed on 22-2-2006 which was duly replied on 15-5-2006 through attorney Muhammad Arif son of Muhammad Siddique.
7. Apart from above FIR. No,302 of 2006 dated 26-6-2006 under sections 448/457, P.P.C. Police Station Tatley Wali Gujranwala, was got registered by respondent Shabbir, which, according to the learned A.P.G. Was found to be false and a cancellation report has been prepared which is pending verification with the D.S.P. Circle.
8. Further more, electricity bills on the record produced by the petitioner from October, 2005 to December, 2005 show that the house in question was in occupation of the petitioner being real brother of widow of Karam Hussain. It is the claim of the respondents that they had taken over possession of the house in question on 27-4-2005. If this is the position then the electricity meter should have been in their name and not in the name of Karam Hussain and more so that why the petitioner would be depositing the said bills to the WAPDA authority if it was not in their name till December, 2005.
9. It is pertinent to mention here that non-filing of suit for specific performance by the respondents upto the death of Karam Hussain till filing of the instant complaint, also casts doubts about the veracity of the version of the respondents coupled with non-production of original agreement before the learned Additional Sessions Judge seized of the matter.
10. It is not believable that Karam Hussain, who was living in U.K. Would only thumb-mark the papers. At least he could have signed, if not in English, then in "Urdu" on the said agreement to sell.
No effort was made by the respondents to get the house in question mutated in their favour.
11. I may also mention here that in the earlier writ petition, the learned Additional Advocate-General Punjab had submitted before this Court that there was no sale agreement between Shabbir and Karam Hussain, even in the police report which was submitted in the first application filed by the petitioner it was stated that the present respondents had taken the possession of the house in question without consent of the petitioner party.
12. As far as judgment of the Full Bench reported in Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 especially sub-paras (ii) and (iii) of para.7, which were referred to by the learned counsel for the respondents, are concerned, read as under:- "For the purpose of providing guidance to all the Courts of Session in the Province of the Punjab, we declared as follows:-- "(i) The Illegal Dispossession Act, 2005 applies to dispossession from immovable property only by property grabbers/Qabza Group/land mafia. A complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible or justifiable claim, In the instant case of an individual it must be the manner of execution of his design which may expose him as a property grabber.
(ii) The Illegal Dispossession Act, 2005 does not apply to run of the mill cases of alleged dispossession from immovable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Group/land mafia, i.e. Cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an on-going private dispute over the relevant property."
13. A bare perusal of the above quoted paragraphs of the Full Bench judgment of this Court shows that the same is not applicable in the facts and circumstances of the case in hand because no legal title qua the house in question lies with the present respondents i.e. They have no registered sale-deed in their favour, no mutation, no electricity bills or any other documents to prove their title.
14. The above resume of facts and law leads this Court to an irresistible conclusion that the reasons given in the impugned judgment, dated 25-9-2006 by the learned Additional Sessions Judge, Gujranwala (the learned trial Judge seized of the matter under the Illegal Dispossession Act, 2005) are illegal, unjust, perverse, arbitrary against the record and have led to miscarriage of justice coupled with the fact that the respondents Nos.2 to 5 have committed offence under section 3 of the Illegal Dispossession Act, 2005. Therefore, this writ petition is allowed, the afore-referred impugned judgment is set aside and respondents Nos.2 to 5 are hereby convicted and sentenced to undergo four years' R.I. Each with a fine of Rs,50,000 each in default whereof to further undergo six months S.I. Each. Although the respondents are present in Court but I am not inclined to take them into custody right here for the reason that this judgment of conviction shall be communicated to the S.H.O. Concerned within seven days from today by the office, the respondents shall hand over the possession of the house in question to the petitioner, the S.H.O.
Concerned shall take them into custody to undergo the above > mentioned conviction and sentence accordingly and a compliance report in this regard shall be submitted before this Court through the Deputy Registrar (Judicial) for information.