' MUHAMMAD RAZA KHAN, J.---Through this judgment the connected Criminal Revision No,5 of 2007 is also decided as the judgment of the learned Additional Sessions Judge, Ghazi dated 2-5-2006 has been assailed in both these proceedings.
2. The facts, relevant for the disposal of the appeal and the revision, are that Ansar Ali (complainant) submitted a complaint on 2-5-2006 under section 3 of the Illegal Dispossession Act, 2005 (hereinafter referred to as the Act) claiming therein that he was the owner in possession of land measuring 12 marlas in Khasra No,363 measuring 81 kanals 10 marlas situated in village Khalo, Tehsil Ghazi and that the accused appellant, along with several other persons, has raised a wall over the said piece of land, during the night between 30-4-2006 and 1-5-2006 by criminal use of force. Therefore, he prayed for invoking the powers of the learned Additional Sessions Judge under section 3 of the Act for penal action against the accused and for the restoration of possession of the said property to the complainant.
3. The learned Court referred the matter to the police station and a report of the same day indicated that the accused has raised a wall of five and a half feet height and has installed a small gate therein, which has been disma ntled by Ansar Ali complainant. On the receipt of the said report from the police the learned trial Court proceeded with the trial of the case. Subsequently during the trial a bailiff was deputed to inspect the spot who, vide his report dated 18-5-2006, observed that a room, constructed of concrete blocks with a roof thereupon, has been completed by the accused within the boundary wall over the disputed plot and from general observation it could be noticed that it was a recent construction.
4. During the trial of the case the evidence was recorded where the complainant produced seven witnesses. The evidence of the complainant was closed on 17-8-2006, i,e, within 3-1/2 months. The statement of the accused under section 342,Cr.P.C. Was recorded on 5-10-2006. Thereafter vide judgment dated 5-12-2006 the accused-appellant was convicted under section 3(2) of the Act and sentenced to two years' R.I. And to fine of Rs,10,000 in default whereof he had to suffer simple imprisonment for one month. A sum of Rs,20,000 was also imposed on him as compensation payable to the complainant under section 544-A Cr.P.C. It was further ordered that the possession of the disputed plot be restored to the complainant and the S.H.O. Concerned was directed to comply therewith. His co-accused Azhar Mahmood was acquitted by the, Court.
5. This judgment of conviction and sentence has been challenged by the accused in Criminal Appeal No,130/2006 whereas the complainant Ansar Ali has filed a revision petition No,5/2007 for the enhancement of sentence and the amount of compensation. Simultaneously a prayer was made for the conviction of the acquitted co-accused Azhar Mahmood.
6. The learned counsel for the appellant argued that the complaint is not maintainable under the said Act because it was neither a case of land grabbing nor the status of the appellant being a member of land Mafia was established. He argued that the appellant was one of the joint owners in the property and he was given the possession by his vendor and he raised construction thereupon without dispossessing anybody and, therefore, his conviction under the said law was legally not maintainable. He referred to the case of Zahoor Ahmad and 5 others v. The State PLD 2007 Lah.231.
The learned counsel, by referring to various extracts from evidence, stressed that the application of a special law for a general controversy between two landowners, was the demonstration of excessive use of authority by the Court and the misuse of law by the complainant.
7. The complainant, himself as Advocate, argued that he was an original owner in the village Khalo and he has been the owner in possession of considerable land including the suit property but the said property has been taken over by the appellant-accused at night time by the use of force. He added that during the pendency of the proceedings, he had raised the construction over the said property which was initially in The form of the front part of the boundary wall but subsequently he completed the room as well despite the knowledge of pendency of the suit. He argued that firstly, the title of the appellant was disputed because he has purchased a fractional share in a huge property and the title of the vendor was yet to be assessed and determined; secondly, that he was in possession of the property but has been dispossessed without the due process of law by the appellant/accused, thirdly, that even if it may be presumed that the appellant-accused had purchased any right in the joint property, he should have approached the concerned Revenue authorities for the partition of the property and separation of his share. Without going through the said process, the unilateral action by him to take the possession of the desired piece of land was the demonstration of aggression and the highhandedness which indicated that the appellant had no respect for law and so he deserved to be punished severely; fourthly, that the appellant has been convicted under a special statute which did not provide for a right of appeal and, therefore, the present appeal was not maintainable.
8. The last point raised by the complainant with regard to maintainability of the appeal has to be taken up, prior to the discussion on other points, because the said objection goes to the root of the case. Section 9 of the Act provides that: "9. Application of Code.---Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (V of 1898), shall apply to proceedings under this Act".
' The learned trial Court had exercised the authority and took cognizance of the matter under section 4 of the Illegal Dispossession Act, 2005 which provides that:-- "Notwithstanding anything contained in the Code or any law for the time being in force the contravention of section 3 shall be triable by the Court of Session on a complaint."
' The whole body of the said Act does not contain any provision with regard to the right of the appeal. Therefore, in view of section 9 the remedy shall be available under the Criminal Procedure Code. The right of, at least, one appeal against any order (particularly against the order of conviction) is an undoubted established principle and practice of criminal justice. Thus the objection with regard to the maintainability of the appeal is without force because anything for which there is no contrary provision in the Act of 2005, the Criminal Procedure Code shall be applicable and since there is no provision of appeal in the Act, therefore, an appeal under section 410, Cr.P.C. Is the appropriate remedy which provides that "any person convicted on a trial held by a Sessions Judge, or an Additional Sessions Judge may appeal to the High Court".
9. All the rest of the arguments on behalf of the parties relate to the applicability of the Illegal Dispossession Act, 2005 to the situation in hand. The Act was promulgated recently to curb the increasing tendencies of the use of force of dispossessing the owners from their valuable properties. However, a nice distinction can be made between the recent statute of 2005 and the earlier law in the field. Immovable property brings the disputes and controversies along with the title. A person may be dispossessed by a contiguous owner, a co-owner or by a stranger. Several provisions in the revenue, civil and criminal law were already in existence to meet the situation for almost over a century. The need of the new legislation was felt when the organized groups of people tried to dispossess the owners of valuable property by the use of force. Thus a menace of land grabbing or "Qabza group" was spreading with a fast speed. The legislature felt the need to curb the tendencies of land grabbing. The said Act was promulgated with a view to "curb the activities of the property grabbers" and the preamble thereof laid down:-- "Whereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom, by the property grabbers".
' In view of the despite of the Federal Government to nip the evil in the bud, the statute with special provisions was enforced where not only the level of the trial Court was specified to be the Court of Session but the harsh punishment of imprisonment extendable to 10 years with fine was also provided with an additional provision of compensation to the complainant under section 544-A of the Cr.P.C. The same law further provided for the eviction of the illegal occupant as an interim relief and for the restoration of possession to the original occupant on the conclusion of trial. The use of police force was provided as mandatory for the restoration of possession and the failure of the Officer Incharge of the Police Station to render assistance for restoration of possession was deemed to be a misconduct for which the Court may direct departmental action against him". A speedy mechanism for the investigation and trial was also provided and in section 5(2) it was provided that "the Court taking cognizance of a case shall proceed with the trial from day to day and shall decide the case within 60 days and for any delay sufficient reasons shall be recorded".
Under subsection (3) of section 5 the adjournment was discouraged and the Court was barred to grant any adjournment, even if necessary, beyond a period of 7 days.
10. Such an expeditious and strict procedure was laid down with a purpose to discourage the attempts of illegal dispossession and to restore the proprietary confidence, and possession, to the owners within the minimum possible time and to discourage the grabbers by deterrent punishment. However, such a special statute with special mechanism can neither be applied to all the cases of trespass and dispossession nor the power of the civil court and the revenue Court has been withdrawn through the said legislation.
11. A particular phrase like "property grabbers" used in the preamble. And the title of the Act and the use of the term in plural is of specific importance. The purpose of the legislation is "to curb the activities of the property grabbers" and not lo provide for a mechanism for the resolution of controversy of encroachment, dispossession etc. Between the contiguous owners and the co- owners. The term "grab" as per Chambers Dictionary 'means "to seize or grasp suddenly: to lay hands on: unscrupulous seizure". The term has been defined in the Oxford English Dictionary as "to grasp or seize suddenly and eagerly, hence to appropriate to oneself in a rapacious and unscrupulous manner". The term "grabber" has been defined as "the one who, or that which, grabs, especially in the combination land grabber used chiefly in C Ireland as a term of reproach for one who takes a holding from which another had been evicted". Thus the term "land grabber" or "property grabber" is used for a person who has rapaciously taken over a possession of a piece of land to which he was not otherwise entitled.
12. The use of the term in plural would indicate a group of such persons who dispossess the others of their property or to take the illegal possession of property belonging to the sleeping owners or dormant persons. Thus the term is aptly described as a "Qabza group". The use of the term in plural indicates that collective activity, and not an individual action, was the main target of the new statute.
13. Thus, for the application of the Illegal Dispossession Act, 2005 it has to be established that firstly, the person who has taken the possession was not having a title thereto; secondly, that he has taken the possession by the use of force, thirdly, that he has taken over the property without the due process of law and fourthly, that such person or persons belonged to the group of land grabbers.
14. In the present case there is no doubt that the complainant was an owner in a joint property but as appearing in the complaint itself the property measured more than 80 kanals and the entitlement of the complainant as an owner in the property was not more than a kanal. There is evidence on the record that the complainant was having the possessions of a part of the joint property which amounted to permissive possession an a part of it has been taken over by the appellant. The record also suggests that the accused appellant had raised construction hurriedly within a couple of days and there is proof to this extent that he raised a part of the boundary wall at night and erected a small gate therein. It is also on the record that the complainant had dismantled the said gate, installed by the appellant. However, despite these proofs there is no evidence to the fact that the appellant had used the force on the complainant or his tenant, lessee or servant for the purpose of such dispossession. There is no proof that any of the building structure, crops, trees etc. Was damaged or demolished by the appellant during the said act of dispossession and there is no proof at all that either the appellant was a land grabber or he belonged to the group of land grabbers, property grabbers or the land Mafia.
15. The term "property grabber" as used in the long title and the preamble of the Act has to be read as part and parcel of every provision contained therein and it has to be established by the complainant that he has been dispossessed by the land grabbers who had no title to such property. The provisions of the special law shall be enforced only when the said requirement is satisfied by the complainant. Thereafter the Court can take cognizance of the matter and put the mechanism of the special statute in motion.
16. The normal trespass over the contiguous property can still be rectified by the Revenue Authorities. The possession of a property beyond entitlement and without partition can still be adjudicated upon by the Revenue Courts. The power of the civil Court under sections 8 and 9 of the Specific Relief Act was still on the statute book and the summary procedure for restoration of possession under section 9 is still alive. The provision of attachment of property likely to cause breach of peace and the penal action against a trespasser is still enforced by the criminal Courts.
The special provisions of a special statute are applicable to the special situations and not to the routine disputes between co-owners, the contiguous owners and the trespassers under the misconception of title or misconceived possession. The application of a special and harsh law to the routine and general situations shall dilute the very purpose of the legislation and make it a redundant piece of law because the purpose for which it was legislated shall not be fulfilled as the number of such type of cases shall be so huge that the Courts shall not be able to give special attention to the situation for which the law was enforced.
17. Thus keeping in view the preamble, i,e, "to protect the lawful owners and occupiers of immovable property from their illegal and forcible dispossession therefrom by the property grabbers" and its application to the present case would show that despite the fact that the complainant was undoubtedly a lawful owner of an immovable property and he was an occupier of a part of it, and even if it is presumed that, the appellant has dispossessed the complainant illegally but there was no proof that such dispossession was forcible and there is no proof at all that such dispossession of the complainant was committed by the property grabbers. The provisions of the said Act shall not be applicable F and so the conviction of the appellant under the said law is legally not proper.
The complainant can still resort to the appropriate legal remedy, if so advised.
18. Hence this appeal is allowed, the conviction and sentence of the appellant is set aside and he is acquitted of the charge and he may be released forthwith if not required in any other case.
Consequently, the criminal revision for the enhancement of sentence fails which is hereby dismissed.
' Announced.