1. ' SHAHID ANWAR BAJWA, J.---Factual context of this Constitutional Petition is that an application under section 8 of the Sindh Rented Premises Ordinance, 1979 was filed by petitioner No,1 against respondent No, 1, who at the .Premises in question operated a Photo-Studio under the name of Phlox Photo Studio. This application was allowed by the learned Rent Controller vide order, dated 18-5-2005. Enhancement of rent to rupees seven per square foot w.e.f, 5-3-2003 with 10% increase thereof for every following year was allowed.
2. ' Being aggrieved by order, an appeal was filed and the appellate Court vide order, dated 28-2- 2007 dismissed the appeal. This aspect thus attained finality. Thereafter ejectment application under section 15(ii) of the Sindh Rented Premises Ordinance, 1979 was filed alleging default in payment of rent. Rent accounts were filed and on 8-8-2008, the tenant was directed to deposit arrears of rent amounting to Rs,8,18,749 for the period till the month of August, 2008 within one month of the date of the order. The tenant did not' comply with the tentative rent order and consequently application under section 16(2) of the Sindh Rented Premises Ordinance, 1979 was filed, which application was allowed by the learned Rent, Controller vide order, dated 29-10-2009.
3. This application was filed in January, 2008. Armed with the order of the learned Rent Controller execution application was filed in January, 2009. And eviction was ordered with police aid. S.H.O.
4. Police Station Rizvia Society was directed vide letter, dated May 26, 2009 to provide requisite police aid. Bailiff of the Court with police assistance got the premises vacated on 28-5-2009 and handed over its vacant physical possession to the present petitioner.
5. ' In the meanwhile F.R.A. Had teen filed and in that F.R.A. On 23-1-2009 stay was granted by the Appellate Court on 23-1-2009. Alleging eviction to be in violation of stay order, an application for contempt of Court against present per No,1., Husband of present petitioner (petitioner No,2), two bailiffs of the Court of Rent Controller and police personnel was filed. Reply to this application was filed by the present petitioners and they stated that interim order was passed by the Appellate Court on 23-1-2009 was never communicated to the petitioners and it was also not ever communicated to the Rent Controller. This contempt application is still pending.
6. ' Meanwhile complaint under section 3/4 of the Illegal Dispossession Act, 2005 was filed by the present respondent No,1 against the present petitioners and present respondents Islos.2 and 3 (the two bailiffs). Legal objections to the complaint were filed and those legal ' objections were dismissed by the learned Court of IInd Additional Sessions Judge, Karachi Central vide order, dated September 28, 2009. This petition has been filed to challenge that order.
7. ' There are thus three proceedings pending in the same Court. First F.R.A., second Contempt Application; and third complaint under the Illegal Dispossession Act, 2005.
8. ' Learned counsel for the petitioners made the following submissions:
(1) They have been given possession by order of a Court of law. Therefore, they did not illegally dispossess anyone. If at all petitioners were illegally dispossessed they were dispossessed by the bailiffs of the Court and it is bailiffs of the Court which handed over possession to the petitioners,
(2) That Illegal Dispossession Act, 2005 is applicable if there is a Mafia of the land grabbers and it is not applicable to cases of disputes between two individuals. In this regard he relied upon Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah.
9. 231.
(3) Learned counsel referred to diary of the Court of Rent Controller in the execution matter and submitted that though the present respondent No,1 was represented in the case execution application starting from 2-2-2009 all the way till 22-5-2009, not on a single occasion did he submit that said order has been passed by the Appellate Court and said order was not even communicated to the present petitioners or even to the Court of Rent Controller.
(4) The summons of F.R.A. Was not issued to the present petitioner No,
1. Present petitioner filed vakalatnama on 30-5-2009 on coming to know of the pendency of the F.R.A.
(5) Nobody can be vexed twice for the same offence. Petitioner is being proceeded against in contempt proceedings as well as under the Illegal Dispossession Act, 2005 and this is in violation of Article 13 of the Constitution of the Islamic Republic of Pakistan.
(6) Learned counsel relied upon Muhammad Siddiq v. Ikramuddin, PLD 1987 Kar. 401, to contend that contempt proceedings can only be taken when the Court comes to the conclusion that the alleged contemnor had information of the order passed against him.
10. ' Learned counsel for respondent No,1 made the following submissions:--
(1) Order has been passed by the Court below in exercise of good judicial discretion and it is a well- reasoned order. Learned counsel read from the bailiffs report and pointed out that at the time of dispossession while 70% of the effects had been taken out, respondent No,1 came there and called his Advocate who spoke to the bailiff on phone and informed the bailiff that F.R.A. Was pending. The bailiff stated that he asked the Advocate if he had a stay order and the Advocate stated that he was coming with a copy of stay order. Bailiff further stated that at about 5-00 p.m. The Advocate showed him the stay order. After obtaining copy of the stay order the bailiff spoke to the head bailiff and informed him of the stay order. Head bailiff told the bailiff that he was to obey order of the Rent Controller and to get it vacated and therefore it was vacated.
(2) On the question of double jeopardy learned counsel referred to Niaz Ali v. The State, PLD 1961 (W.P.) Lahore 269, Muhammad Ashraf and others v. The State, 1995 SCMR 626 and Sakhi Dost Jan v.
11. The State, PLD 2000 Quetta 26.
12. ' I have considered the submissions made by the learned counsel. I have also gone through the record and case-law cited by the learned counsel.
13. ' I will first deal with the point whether Illegal Dispossession Act, 2005 is applicable to cases of individual persons or whether it is only applicable to cases where land grabbers and mafia groups are involved. In this regard the learned counsel referred to Zahoor Ahmad's case and the following para. From that order:-- "After enactment of the Illegal Dispossession Act, 2005 it has been noticed that although this Act was restricted in its scope and applicability to illegal dispossession from immovable properties only by a particular class of persons who could qualify as property grabbers/Qabza Groups/land mafia yet the said Act is now being invoked and utilized by all kinds of aggrieved persons in all kinds of cases of dispossession from immovable properties even by individuals who have no credentials or antecedents of being property grabbers or being members of a Qabza Group or land mafia. Such abuse and wrong utilization of the Illegal Dispossession Act, 2005 has been found to be completely nugatory to its contents as well as objectives. It has appeared that through a mistaken or deliberate issue of the Illegal Dispossession Act, 2005 the legal remedies already occupying the field against run of the mill and ordinary dispossession from immovable properties have been dispossessed of the filed and that surety was not the intent or spirit of the Illegal Dispossession Act, 2005."
14. ' The preamble of Illegal Dispossession Act, 2005 reads as under:-- "Whether it is expedient to protect the lawful owners and occupiers of immovable property from their illegal or forcible dispossession there from by the property grabbers;"
15. ' What is to be noticed thereafter, is that the law defines "occupiers" and the "owner" and does not define "property grabbers". Section 3 is relevant and it reads as under:-- "Prevention of Illegal possession of property, etc.---(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property.
(2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provisions of section 544 of the Code.
16. The very first words of the section 3 are that no one shall enter. There is no mention in this section that no one belonging to a mafia or group of land grabbers, Further there is no requirement in the Act that one must have grabbed at least so many properties and only then he will be proceeded again. No doubt in the preamble, the words 'land grabbers' have been used and they have been used in the plural, but firstly the preamble though it must be given due weight, it does not have the same weight as the words used in the Act. Lord Normand in Attorney General v. H.R.H. Prince Earnest Augustus of Hanover (1957) A.C. 436, laid down the scope the preamble in the following words:-- "When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts. There may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble. Again, the preamble cannot be of much or any assistance in construing provisions which embody qualifications or exceptions from the operation of the general purpose of the Act. It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail. The Courts are concerned with the practical business of deciding a lis, and when the puts forward one construction of an enactment and the another, it is the Court's business in any case of some difficulty, after informing itself of what I have called the legal and factUal context including the preamble, to consider in the light of this knowledge whether the enacting words admit of both the rival constructions put forward. If they admit of only one construction, that construction will receive effect even if it is inconsistent with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred."
17. Therefore in the case of Illegal Dispossession Act, 2005 even if an individual is illegally dispossessed, he has a right to have recourse to the provisions of Illegal Dispossession Act, 2005 without prejudice to such other remedies that may be simultaneously available to him under the other laws. Therefore, this contention of Mr. Moin Azhar Siddiqui does not hold water.
18. ' Coming to next contention of Mr. Moin Azhar Siddiqui that he was given, possession of the property under an order of a Court by the bailiffs of the Court and since under the Maxim Actus Curirac Namenem Gravabit, (which means act of Court prejudices no one) he is not liable. His further submission was that dispossession was effected by the bailiffs of the Court of Rent Controller and not by his client. His next .Submission on the same point was that order of stay granted by the Appellate Court was never communicated to him, and it was not even communicated to the Court below. It was not even stated by the counsel for present respondent. No,1 in the executing Court which Court passed order of the execution. Mr. Moin Azhar Siddiqui, Advocate relied upon Muhammad Siddiq's case. Facts of the case were that an injunctive order under Order XXXIX C.P.C.
19. Was passed. In contempt matter it was pleaded by the applicant that the injunctive order was not served on him and as such he was not aware of the same. The Courts below in that case failed to record any positive findings no this aspect of the matter and the High Court observed that the Courts below should first determine positive knowledge of the status quo order on part of the petitioner before passing any order under Order XXXIX, Rule 2(3), C.P.C. Revision was consequently accepted and orders of the two Courts below were set aside and the matter remanded to the Trial Court with direction to first determine whether the ix pioneers positively had knowledge of the status quo order before deciding the application under Order XXXIX, Rule 2(3), C.P.C.
20. I am in agreement with Muhammad Siddiq's case. However, what is to be noticed is that so far no order, whatsoever, on contempt application has been passed by the Appellate Court below.
21. Needless to observe that while passing an order on the contempt application, the Appellate Court below would positively determine as to whether the alleged contemnors before it had knowledge of the order of stay and the effect, if any, of non-communication, if any, of the order to the Court of the learned Rent Controller.
22. Next contention of Moin Azhar Siddiqui, Advocate was that the act alleged against him is of illegal dispossession. For the same act he is being proceeded in contempt proceedings and he is also being proceeded against under the Illegal Dispossession Act, 2005 and he submitted that two proceedings cannot go side by side. Reference was made to Article 13 of the Constitution, section 403 of the Cr.P.C. And section 26 of the General Clauses Act. The three provisions are reproduced below:-- "(13) Protection against double punishment and self-incrimination; No Person--
(a) shall be prosecuted or punished for the same offence more than once; or
(b) shall, when accused of an offence, be compelled to be witness against himself.
403. Persons once convicted or acquitted not to be tried for the same offence.---(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried against for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 36, for which he might have been convicted under section 237."
23. ' Learned counsel relied upon Ismail A. Rehman v. Muhammad Sadiq and 3 others PLD 1990 Karachi 286, in this regard and learned counsel for respondent relied upon Niaz Ali v. The State, PLD 1961 (W.P.) Lahore 269, Sakhi Dost Jan v. The State, PLD 2000 Quetta 26 and Muhammad Ashraf and others v. The State 1995 SCMR 626.
24. ' In Ismail A. Rehman's case, facts were that petitioner was owner of a shipping agency which had been carrying on business of export clearing agents. F.I.R. Was filed in the Court of Special Judge Custom against the petitioner and seven other persons for an offence under section 32 of the Act of 1969 punishable under section 168(1) (82). It related to alleged fraudulent payment of export rebate claims. It was alleged in the F.I.R. That preliminary inquiry revealed that five persons named as accused in the F.I.R. Had conspired jointly to manipulate receipt of export rebate. Three F.I.Rs, were also filed in the Court of Special Judge, Karachi Central and the same were also filed in the Court of. Special Court (Customs and Taxation), Karachi. It was contended that two prosecutions cannot be carried on at the same time. The Court noted besides provisions of Article 13 of our Constitution and section 403 of the Cr.P.C., provisions of Article 20(2) of the Indian Constitution and fifth amendment of the Constitution of the United . States, which two provisions are in the following words:-- ' Article 20(2), "No person shall be prosecuted and punished for the same offence-more than once."
25. Fifth Amendment to the constitution of the U.S.A.
26. "No person shall be....Subject for the same offence to be twice put in jeopardy of life or limb."
27. ' The Court noted that in Pakistan Constitution word OR has been used between words prosecuted and punished and in Indian Constitution word AND has been used. It noted meaning of prosecution and held as under:-- " 'Prosecution" or 'prosecute' in the special sense of law means, according to Webster's Dictionary:
(a) to follow, pursue, to follow to the end, the seek to obtain, to enforce, or the like, by legal process, to prosecute a right or a claim in a Court of law; (b) to pursue to institute legal proceedings for redress or punishment; to proceed against judicially; exp., to accuse of some crime or breach of law, or to pursue for redress or punishment of a crime or violation of law, in due legal form before a legal tribunal; the carrying on of a judicial proceeding on behalf of a complaining party; the institution and continuance of a criminal suit involving the process of exhibiting formal charges against an offender before a legal tribunal and pursuing them to find judgment on behalf of the State or Government".
28. ' According to Wharton's Law Lexicon by A.S. Oppe, 14th Edition (1976 Reprint) page 810, 'prosecution' means proceeding either by way of indictment or information, in the Criminal Courts, in order to put an offender upon his trial".
29. ' The word 'prosecution' occurring in Article 13 would mean an initiation or starting of proceedings of criminal nature before a Court of Law or a Judicial Tribunal in accordance with the procedure prescribed in the Statute which creates the offences and regulates the procedure."
30. ' Since the provisions occurred in the fundamental right it refuses to read word OR as AND with the following observation: "We are not unmindful of the statutes in which sometimes the Courts do read word 'or' as 'and' and vice versa but there must be some strong reason to do so. For instance, such substitution may have to be made to give effect to the obvious intent of the legislature and to effectuate the policy intended to be laid down by a given statute. The normal rule of construction, however, remains that the words must be given their primary meaning and, therefore, unless we are compelled by the scheme of the Fundamental Rights mentioned in the Constitution indicating an obvious intent of the legislature to adopt a contrary view, we must read 'or' for 'and' and not to go to the extreme limit of interpretation. It is not necessary to read 'or' for 'and' in the paramount interests of harmonious construction and effectuation of legislative intent."
31. ' It concluded in the following words:-- "In the present case, the parties are the Director-General of Intelligence and Investigation (Customs and Excise) and the present petitioners other accused. In the other case the parties are State through Assistant Director, FIA/CC-II, Karachi and the present petitioners other accused. Both the complaints are in respect of the same set of facts and same evidence is involved. Mr. Siddiqui and the learned Additional Advocate-General assert that both these complaints can continue at one and the same time.
32. ' As the proceedings before the Court of Special Judge (Customs and Taxation) Karachi, are still pending and the evidence is still to be recorded, in this view of the matter we are of the opinion that this is one of those cases in which it is in the interest of justice that the proceedings pending (in F.I.R. Nos. 30, 31 and 32 of 1987) before the Court of Special Judge (Central) for offences under section 156(1)(14) of the Customs Act, 1969, and section 5(2) of Act, No,II of 1947 are stayed till the disposal of the proceedings in the Court of Special Judge (Customs and Taxation), Karachi.
33. ' On this view of the matter, we do not propose to deal with the other contentions raised by the learned counsel for the petitioners.
34. ' The result therefore, is that the petitions will be allowed only to the extent that the proceedings pending before the Court of Special Judge. (Central) are stayed till the disposal of the proceedings in the Court of Special Judge (Customs and Taxation) Karachi. In the circumstances of the case, the parties are directed to bear their own costs."
35. ' On the other land learned counsel for respondent relied firstly upon Niaz Ali's case. Niaz Ali, a Canal Patwari, was convicted under section 161, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947. On the night between 5th and 6th of September, 1959, a breach occurred in the watercourse which irrigated lands of that Chak and irrigation water was illegally diverted to the land of another person, a resident of the same Chak, although it was turn of another person. It was also alleged that illegal gratification was demanded and the High Court observed as under:-- "(7) The learned counsel has lastly urged that separate sentences for the two convictions recorded by the Special Judge are illegal, as allegedly the accused and committed only one act constituting one offence, although falling under two enactments, and he cannot be punished twice over for the same. I am of the view that this contention is well-founded. Section 26 of the General Clauses Act provides a bar to double punishment for the same offence, although a person is liable to be prosecuted and punished for an act of omission constituting an offence and falling under two or more enactments. In other words there is bar to a trial or a conviction for the same act which is an offence under different enactments, but there is a bar to a punishment being awarded twice for the same offence. In such a case it would."
36. ' In Sakhi Dost Jan's case (supra), the offence fell both under the Customs Act and Prohibition of (Enforcement of Hadd) Order, 1979. Mr, Justice Iftikhar Muhammad Chaudhary, Chief Justice of Balochistan High Court (as his lordship then was) primarily relied upon Muhammad Ashrar s case, .And observed that duplicate punishment is prohibited and not duplicate trial. In Muhammad Ashraf's case facts were that on the night between 7th and 8th December, 1976 four persons were murdered at a distance of eight miles from the police station. F.I.R. Was lodged next morning. The Honourable Supreme Court after referring to Article 13 of the Constitution observed as under:-- "It will be seen that the protection given by this Article is against prosecution and double punishment. By prosecution is meant a trial followed by judgment of acquittal or punishment. It includes the entire proceedings starting with taking cognizance of an offence by the Court, followed by examination of evidence, addressing of arguments and ending with the pronouncement of judgment. It seems to us that if as a result of prosecution for an offence the trial end in acquittal, Article 13(a) is not attracted. Constitutional guarantee is available only if the accused is convicted and punished. Thus if the first prosecution results in acquittal, so far as this Article is concerned, the second prosecution is not prohibited. It is, however, open to the legislature to enlarge the scope of Constitutional guarantee and further extend the protection envisaged by Article 13(a). Such extension of rule of double jeopardy is to be found in section 403(1) of the Criminal Procedure Code, which is reproduced below:-- "(A)person who has once been tried by Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237.
37. ' It is to be noticed that the Constitutional guarantee is confined only to duplicate punishment and is silent insofar as acquittal is concerned. Section 403(1) however prohibits the second trial or an offence during the course of existence of conviction or acquittal of a person, as the case may be, in consequence of final adjudication of such an offence by a Court of competent jurisdiction. Thus the rule against "autrefois aquit" finds place in. Section 403(1) and the counterpart of this rule "autrefois convict" has received recognition in the Constitutional guarantee embodied in Article 13(a)."
38. ' The judgment of the Honourable Supreme Court is binding on this Court and must be followed.
39. In this case there are three proceedings, which are pending. First is the F.R.A; second are Contempt proceedings and third complaint under the Illegal Dispossession Act, 2005. They were instituted in the same order. Therefore judicial propriety demands that Appellate Court should first decide the F.R.A. After deciding the F.R.A. It should take up case of contempt and after deciding case of contempt then it will decide in respect of proceeding with the matter under the Illegal Dispossession Act, 2005. Till decision of the first two matters, proceedings under the Illegal Dispossession Act, 2005 are stayed.
40. ' This writ petition is disposed of in the above terms.