' JAMAL KHAN MANDOKHAIL, J.--- This appeal has been filed under section 417, Cr.P.C. Against the judgment dated 18-4-2008, passed by Additional Sessions Judge-I, Quetta, whereby; complaint under section 3/4 of the Illegal Dispossession Act, 2005, filed by the appellant, has been dismissed and the respondent has been acquitted of the charge.
2. Briefly stated facts of the case are that on 17-12-2005, the appellant has filed a complaint against respondent No,1 with the contention that, he is a recorded owner and in possession of the land bearing Khasra Nos.870, 671, 877, Khewat/Khatooni No,1254/82, measuring 9867 sq.Ft. And the property having Khewat/Khatooni No,209/77, Khasra No,780, measuring 2309 sq.Ft., situated at Mohal and Mouza Ward No,28, Tappa Urban-II, Tehsil and District Quetta.
' It is alleged that initially the respondent was in possession of property as tenant, but later on, in result of private settlement, he handed over possession of the same to appellant subject to receiving an amount of Rs,200,000 through cheque. According to appellant that on receiving possession of the property in question, he started raising construction of building, but on 5-12-2005, respondent No,1 has illegally entered into the property of appellant for the purpose of grabbing and occupying the same without having any lawful authority to do so, hence, present complaint was filed.
' It is important to mention here that when the appellant had filed the complaint, then, to sabotage the same, respondent No,1 has filed a civil suit against appellant in respect of above stated property (property in question) in the said suit, respondent No,1, alleging therein that, he is in possession of the same. He claimed that the defendant (present appellant) is trying to illegally dispossess him, as such, he prayed to restrain him. The appellant has contested that suit by saying that the plaintiff was his tenant in the said property, however, in view of settlement, possession of the land in question has been handed over to appellant, subject to payment of Rs,200,000.
' On conclusion of case, suit of respondent No,1 was dismissed vide judgment and decree dated 30-8-2007. Feeling aggrieved from the same, respondent No,1 filed on appeal before Additional District Judge-V, Quetta, which too was dismissed on 19-12-2007. Thereafter, respondent No,1 preferred Revision Petition No,35 of 2008 before this Court, which also met the same fate vide judgment dated 14-5-2008.
' Respondent No,1 did not satisfy from all the concurrent findings of three Courts including this Court and challenged the same before honourable Supreme Court of Pakistan through Civil Petition No,61-Q of 2008. The apex Court, while deciding the petition, the honourable Supreme Court of Pakistan has held as under:--- "(4) We have heard the learned counsel for the parties at length and have also perused the available record. The High Court and the Courts subordinate thereto have recorded categorical findings that the dispute between the parties had been settled by the head of their Kasi tribe and, as a consequence thereof, the petitioner, being a tenant, received a sum of Rs,200,000 (two lacs) vide Cheques No,Exh.D/3-A and handed over the possession of the suit property to the respondents. The petitioner failed to call in question the findings of the High Court and the Courts below specifically on this aspect of the case in the memo of petition before this Court. Ordinarily, we are not expected to substitute such findings in the absence of any misreading or non-reading of evidence. The impugned judgment of the High Court is painly correct to which no exception can be taken.
(5) For the foregoing reasons, we do not find any merit in this petition, which is dismissed and leave to appeal is refused accordingly."
' It is pertinent to mention here that, during pendency of above stated suit, complaint was dismissed and the appellant has preferred instant appeal to challenge the impugned judgment.
3. Learned counsel for the appellant has submitted that possession of appellant has been proved through judgment and decree dated 30-8-2007, passed by Civil Judge-II, Quetta, which was confirmed by Additional Sessions Judge-II, Quetta, this Court, as, well as, by honourable Supreme Court of Pakistan.
' According to him, once the respondent handed over possession of the property in question to appellant, then, reoccupying the same amounts to illegal dispossession of appellant, therefore, his action comes within the meaning of sections 3 and 4 of the Illegal Dispossession Act, 2005. He has submitted that the trial Court, while dismissing the complaint has not considered all the above stated facts of the case.
4. On the other hand, learned counsel for respondent No,1 has vehemently opposed the petition and has stated that the property in dispute, which is in possession of respondent No,1 is a different property and is not the subject-matter of civil suit as well as the one in respect of which, settlement was arrived at between the parties. He has stated that the trial Court has acted justly and properly, as such, the judgment impugned cannot be interfered.
5. We have heard the learned counsel for appellant and have gone through the record, as well, which reveals that, complaint has been filed by appellant against respondent No,1 in respect of land described hereinabove. Contention of complainant is that, respondent No,1 was his tenant, from whom, he has obtained possession in view of private settlement arriving at between the parties by the intervension of notables of area. In view of same, it was settled that, the respondent would hand over possession of the land in question to complainant/appellant subject to payment of Rs,200,000. According to appellant, he has paid the said amount through cheque. After getting possession, the respondent has now started interfering in the property in dispute and illegally occupied it without having any lawful authority. It is important to mention here that the respondent has not denied the possession over land in question and has claimed that, he is already occupying the same in his own capacity and that, the land in question is subject-matter in respect which, the settlement was arrived at.
' It may also be noted that after filing of complaint, the respondent has filed a civil suit in respect of property, which is a subject-matter of present complaint, wherein, he has shown himself to be in lawful possession, requesting that, the petitioner and others are trying to illegally dispossess him, therefore, they be restrained. It is important to mention here that the appellant had raised same plea, as has been raised in his complaint. After dismissal of suit, when the matter came up before this Court, it was held that, after handing over possession of the disputed property by the respondent to appellant through settlement and subject to payment of Rs,200,000 then, any attempt to occupy the premises would tempt and amounts to trespass within purview of law.
These findings were challenged before the honourable Supreme Court of Pakistan, but the same were maintained.
' It transpired that in spite of declaring possession of the respondent as illegal, still, he is continuing to retain the same.
' Dispossession means occupying the land, without the consent of occupier or owner, or, obtaining possession of the land, other than due course of law. Illegal Dispossession Act has been promulgated to prevent the action of class or group of persons, who have the credentials or antecedents of being property grabbers, Qabza Group, Land Mafia and illegal encroachers, thus, the main object is to curb the activities of such like persons and to nip the evil in the bud, therefore, special provisions were enforced. Keeping in view the gravity of illegal act, the lawmakers have not only specified the level of trial, as the Court of Session, but also punishment of imprisonment has been made extendable up to ten (10) years with fine and also provided a provision for compensating the complainant under section 544-A, Cr.P.C.
Coming to the case, it is strangely to note here that in spite of the fact that all the Courts, right from Civil Judge up to honourable Supreme Court of Pakistan, have held the possession of respondent No,1 over land in dispute as illegal, and at the same time, it has also been held that, earlier, possession of the land in dispute was handed over to appellant, thus, again, occupying the land by the respondent amounts to illegal occupation with the view to grab the property, illegally, without having any entitlement.
The appellant, in proof of his complaint, has not only produced the judgments referred to the above, but has also produced ten (10) witnesses and recorded his statement as P.W.1, through whom, the appellant has fully established his case and also proved his dispossession by hands of respondent.
' The respondent was examined under section 342, Cr.P.C., wherein, to question No,4, he has replied that, though he had received the said cheques in question, but it was not with regard to the property in question. aint, has held that, there is no direct evidence on record, showing that, the respondent/accused had delivered that possession of property in question to complainant. According to him, it was rented out to respondent No,1 for the purpose of dairy farm and, presently, a house is, thereon, existence.
' It is worthwhile to mention here that the plea of respondent No,1 has already not been accepted by Civil Judge-II, Quetta, as well as, Additional District Judge-II, Quetta. The trial Court, while deciding the complaint, was under obligation to have taken note of the same, but he has not considered these judgments, without any rhyme and reasons. The act of trial Court by not considering the verdicts of competent Court of law, as well as, evidence and material available on record before him, amounts to misappreciation and non-appreciation- of evidence, which is an illegality and irregularity on his part. Thus, in such view of the matter, the judgment impugned dated 18-4-2008, passed by the Additional Sessions Judge-IV, Quetta, is not sustainable.
6. Thus, in view of above, respondent No,1 has committed an offence within the meaning of section 3 of the Illegal Dispossession Act, 2005, by illegally dispossessing the appellant from the land in dispute, therefore, we are inclined to accept the appeal, consequently, respondent No,1 is convicted and sentenced under section 3 of Illegal Dispossession Act, 2005, to suffer one (1) year's R.I. And to pay fine of Rs,10,000 and in default whereof, he shall further suffer three (3) months' S.I.
The concerned police authorities are directed to obtain possession of the land bearing Khasra Nos.870, 671, 877, 784, Khewat/Khatooni No,1254/82, measuring 9867 sq.Ft. Mohal and Mouza Ward Nq.28, Tappa Urban-II, Tehsil and District Quetta, and the property having Khewat/Khatooni No,209/77, Khasra No,780, measuring 2309 sq.Ft., from respondent No,1 and hand over the same to appellant within a week after announcement of this judgment.