1. ' SHAHID ANWAR BAJWA, J.---For reasons, to 'be recorded later, this Criminal Revision Application was dismissed, vide order, announced in open Court on 22-8-2011. The following are my reasons for the short order. A complaint under sections 3, 5, 7 and 8 of the Illegal Dispossession Act, 2005 was filed by the present applicant (hereinafter referred to as the Complainant) in respect of a property, bearing Survey No, 622/1 Ward-C, Sukkur. It was stated in the complaint that the property originally belonged to PWD Department and, in 1974, Land Utilization Department of Government of Sindh, granted 928 square yards to one Dr. Ghulam Nabi Shujrah and, upon his death, record of rights was mutated in the name of legal heirs, vide order, dated 16-5-1991. It was further stated in the complaint that in 2004, the complainant and other co-sharers had purchased the property from legal heirs of Dr. Ghulam Nabi Shujrah through a registered sale-deed and, after obtaining approval of the. Municipal Authorities, a hospital on ground floor and residential flats on other floors were constructed. Possession was .Handed over by complainant to respondent No, 2 for carrying out construction, who in turn delivered in to respondent No,1 . It is further stated that two sons of respondent No, 1, Habib Ismail, filed a 1st class suit, claiming share in the property, which suit was still pending and the construction contractor, namely, Abdul Aziz Sherwani handed over the property to Habib Ismail.
2. ' The direct complaint was dismissed by 1st Additional Sessions Judge, vide order, dated 22-5-2008.
3. Being aggrieved by that order, a Criminal Revision Application was filed, which Revision was disposed of, vide order, dated 19-2-2009. Against such order, Criminal Petition No,17-K of 2009 was filed and that Petition was disposed of by the honourable Supreme Court in the following terms:-- "Having heard learned counsel for the parties and having gone through the impugned Judgment, we are of the view that before a Court proceeds to pass any order under the Illegal Dispossession Act, 2005, it has to satisfy that there was illegal dispossession which is a question of fact dependent upon factual enquiry. This aspect, we may observe with respect, escaped the notice of the learned High Court. The observations made by the learned Judge with regard to pending lies in civil domain were also unwarranted. In the afore-referred circumstances, the impugned Judgment is not sustainable both on law and fact. Even the learned trial Court did not give any finding with conscious application of independent mind on this point. Consequently, this Petition is converted into appeal and allowed. The impugned Judgment and the Judgment of the learned trial Court dated 22-5-2008 are set aside. The complaint of the respondent shall be deemed to be pending to be decided within six weeks of the receipt of this order. The trial Court, if it deems proper, may issue notice to the contractor if an application is made by the respondent-complainant in this behalf.
4. The parties may place on record documents with permission of the Court, which may be necessary for just decision of the case".
5. ' After it was so disposed of, evidence of complainant was recorded as also evidence of D.W. Abdul Razzaq and, thereafter, vide Judgment, dated 13-10-2010, the complaint was dismissed, which has led to filing of this Criminal Revision Application.
6. 1st class suit was filed by two sons of respondent No, 1, being Suit No, 217 of 2006. The plaint was rejected under Order VII, Rule 11, C.P.C. On the ground that the date fixed was for the purpose of performance of contract and the suit had been filed before that fixed date could be reached and, therefore, it was filed at a premature stage. Such order, passed on 19-6-2009, was challenged in Civil Appeal No,76 of 2009, which Revision was also dismissed, and, against such order, Revision Application is pending in this Court.
7. ' Learned counsel for the complainant read from the written statement of the contractor.
8. Respondent No, 2, who had stated as under:-- "The defendant No, 1 after accepting the execution of the sale agreement and acknowledging the liability thereunder has filed the objections dated 27-2-2007 to an application of the plaintiffs dated 16-2-2007 under Order XXXIX, Rules 4 and 7, C.P.C. Read with section 151, C.P.C. Wherein he has referred to Faisla and since unable to discharge his liability instructed the answering defendant on 25-5-2007 in the office of the answering defendant at Sukkur, in presence of one Haji Abdul Razzaq and Syed Iqbal Babu (known Journalist of Larkana District) to put the guardian of the plaintiffs namely Habib Ismail in possession of the entire ground floor of the disputed property as a sign of good gesture, thus the answering defendant on 25-5-2007 has put the plaintiff through their guardian in possession of the entire ground floor and has obtained the separate receipt for the same. (Copy of the receipts is filed and marked as Annexure D-711)".
9. ' Learned counsel submitted that this proved that the respondent No,1 was in illegal possession of the property and had illegally dispossessed the complainant. He relied upon the case of Shahabuddin v. The State, PLD 2010 SC 725 and Shahabuddin v. The State 2010 PCr.LJ 422.
10. ' Learned counsel submitted that there is no sale-deed in favour of respondent No, 1 and, therefore, it must be presumed that respondent No,1 had illegally dispossessed the complainant. He relied upon Nabi Bux and 6 others v. Ghulam Muhammad and others PLD 2008 Karachi 518, Muhammad Akram and 9 others v. Muhammad Yousuf and another, 2009 SCMR 1066, Muhammad Ikhlaq and another v. Mst. Hamida Naqvi and another 2010 MLD 523, Malik Muhammad Akram v. Muhammad Kahir and another 2010 PCr.LJ 666 and Mumtaz Hussain v. Dr. Nasir Khan, 2010 SCMR 1254. Learned counsel submitted that the trial Court for its findings, primarily relied upon Bashir v. Additional Sessions Judge, Faisalabad, PLD 2010 SC 661 and submitted that facts of that case were different and, therefore, were clearly distinguishable. Mr. Bhajandas Tejwani, learned counsel for respondent No,1, submitted that the plaint of the suit was rejected on the ground that it has been filed before the date fixed for performance of contract had expired and, therefore, the plaint was rejected as premature. He submitted that Revision Application is still pending in this Court. He submitted that the suit was filed before institution of present complaint. Regarding the alleged contract of sale or Faisla, learned counsel referred to annexure P-5 of the statement, filed on 17-8-2011, which is an application under Articles 59 and 84 of the Qanun-e-Shahadat Order, 1984 and wherein it is prayed that the Court may be pleased to refer to finger prints, the disputed agreement of sale or to Handwriting Expert for comparison with the admitted signatures and finger prints. Learned counsel submitted that objections to this application were filed and in the objections, it was stated as under:-- " That in pursuance to the private Faisla, dated 16-12-2006, held at Karachi at the house of plaintiff, the defendant No,1 has acknowledged the liability of Rs,1,55,00,000, mentioned in the agreement of sale, dated 19-8-2006. As such this application has become infructuous and the same is liable to be disposed of accordingly".
11. ' Learned counsel contended that in view of such ,admission, Faisla is admitted. Learned counsel submitted that D.W. Abdul Razzaq, in his evidence, clearly stated that there was a dispute between respondent No, 1 and complainant in respect of property, as respondent No, 1 had purchased 20 per cent share and, on 25-5-2007, a Faisla was made wherein it was decided that possession of only ground floor be given to respondent No,
1. He submitted that such aspect has not been shaken in the cross-examination.
12. ' Learned counsel further submitted that criminal case under sections 420 and 511, P.P.C. Was filed by present complainant against respondent No, 1 for breach of trust. Learned counsel submitted that proceedings of F.I.R. No, 118 of 2008 were quashed by High Court, by consent of parties. He further submitted that since those proceedings have been quashed, fresh complaint is barred by Article 13 of the Constitution.
13. ' Learned counsel referred to para 5 of the complaint wherein it is stated that a Faisla is lying in the possession of Haji Abdul Razzaq and that Haji Abdul Razzaq came as a witness. Only evidence of complainant was recorded and his solitary evidence was not supported by any other evidence.
14. The evidence was rebutted by D.W. Abdul Razzaq.
15. ' Learned counsel submitted that it is only professional land grabbers against whom proceedings under the Illegal Dispossession Act can be taken and he referred to the case of Bashir Ahmed v.
16. Additional Sessions Judge, Faisalabad and 4 others PLD 2010 SC 661, Nazir Ahmed v. Asif and 4 others PLD 2008 Karachi 94, Muhammad alias Mahamand v. Rana Abdul Qayoom, Additional Sessions Judge, Kamalia 2007 MLD 815, Jan Pervez v. Haji Fazal Hussain and 6 others, PLD 2007 Peshawar 179, Muhammad Bux v. Additional Sessions Judge and others, 2010 PCr.LJ 268, Zahida Nasreen v. Additional Sessions Judge, Sahiwal and 2 others 2010 PCr.LJ 575 and Waqar Ali and others v. The State through Prosecutor-General/Advocate-General, Peshawar and others PLD 2011 CSC 181.
17. ' Mr. Abdul Qadir Shaikh, learned counsel for respondent No,2, submitted that the complainant filed a suit for damages and possession and, therefore, the complaint is not maintainable.
18. ' Mr. Shyam Lal, APG, supported the impugned order.
19. ' I have considered the Submissions, made by the learned counsel and have also gone through the record.
20. ' I will first take up contention of Mr. Tejwani that the Illegal Dispossession Act cover cases of professional land grabbers only and case of an individual cannot be taken up under this Law. He relied upon the case of Bashir Ahmed (supra). In that case, reference was made to the case of Zahoor Ahmed and 5 others v. The State and 3 others, PLD 2007 Lahore 231 and it was observed that the Act of 2005 was introduced in order to curb the activities of Qabza group, property grabbers and land mafia. Learned counsel next relied upon Nazir Ahmed's case (supra). In that case, a Single Judge of this Court observed as under:-- "The Illegal Dispossession Act, 2005 has been promulgated by the Government to protect the lawful possession of lawful owners of the property and possession of lawful occupier and against illegal dispossession at the hands of land, grabbers and land Mafi ,. The preamble of Illegal Dispossession Act, is quoted hereinbelow:-- "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".
21. ' Learned counsel next relied upon Rana Abdul Qayoom's case (supra). It was observed that the Act of 2005 is not applicable to the cases of individual land grabbers. Jan Pervez's case (supra) was also referred to. All that has been observed in that case is that provisions of Illegal Dispossession Act are not to be used in the cases, which fall within the ambit of civil disputes and can be effectively redressed under the provisions of the Specific Relief Act. Learned counsel also referred to Muhammad Bux's case (supra). This case is against the proposition, advanced by Mr. Tejwani, as it was observed in this case as under:- "From the guidance of this judgment, it is crystal clear that all cases of illegal occupants without any distinction would be covered by the Illegal Dispossession Act, 2005 and the object of the Act was to protect the property of the lawful occupants from the illegal and unauthorized occupants across the board. Even if a relative takes possession of a property through illegal and unauthorized means from a lawful owner, the provisions of Illegal Dispossession Act, 2005 would be attracted.
22. Provisions of Illegal Dispossession Act, 2005 were not only applicable to land grabbers, Qabza groups or other persons habitually indulging in such activities but to all persons illegally occupying or in possession of any person".
23. ' In Zahida Nasreen's case (supra), it was observed by a Single Judge of Lahore High Court that the Act of 2005 was meant for land grabbers and was not meant for co-owners or co-sharers of land claiming against each other. Last case, relied upon by learned counsel, was Waqar Ali's (supra).
24. There is no observation in this Judgment for the proposition, that learned counsel advanced. This aspect was considered by me in Shahabuddin's case (supra) and it was observed as under:-- "21. 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 against. No doubt in the preamble, the words property 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.
25. H.R.H. Prince Earnest Augustus of Hanover (1957) A.C. 436, laid down the scope of 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 A indications that may be gathered from the preamble. Again, the preamble cannot be of much of 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 p 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."
22. Therefore for prosecution under the Illegal Dispossession Act, 2005 even if an individual is illegally dispossessed, he has a right to have a 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. Ilyas Khan; does not hold water".
26. ' This Judgment was challenged in the Supreme Court and the Supreme Court, in Shahabuddin's case (supra), held as under:- "8. So far as the contention of the learned counsel that the Act, 2005 is meant for the land grabbers, whereas the petitioner is not a land grabber,,, is concerned, this argument is also not available to him for the reason that he had failed to prove his lawful ownership over the property in dispute.
27. More so, the Act, 2005 is a special enactment, promulgated to discourage the land grabbers and to protect the rights of owner and lawful occupants of the property as against the unauthorized and illegal occupants. Learned High Court, in the impugned judgment, has elaborately discussed this aspect of the case and observed that "there is no requirement in the Act that one must have grabbed at least so many properties and only then he will be proceeded against; 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 word used in the Act Therefore, for prosecution under the Illegal Dispossession Act, 2005 even if an individual is illegally dispossessed, he has a right to have a recourse to the provisions of Illegal Dispossession Act, 2005 without prejudice to the such other remedies that may be simultaneously available to him under the other laws". In our considered opinion, these observations by the learned High Court are irrefutable and worthy of credence".
28. ' In view of this clear dicta of the Supreme Court, to me it appears that there is no scope of further arguments that one has to be a professional land grabber and only then he can be prosecuted under the Act of 2005.
29. The key question, to be considered, is that whether there was any illegal dispossession. The complainant, in his complaint, clearly stated that he handed over the possession to respondent No, 2 and it was respondent No, 2, who was in possession of plot on which respondent No,2, though under a contract with the complainant, started constructing a building. It was respondent No, 2, who handed over the possession to respondent No 1; therefore, as far as respondent No, 1 is concerned, he never dispossessed the complainant and, as far as respondent No, 2 is concerned, he was given lawful possession by the complainant. He might or might not have handed over such possession lawfully to respondent No,1 but in any case, he cannot be accused of having illegally dispossessed the complainant.
30. ' Learned counsel for the complainant submitted that since there is no sale-deed in favour of respondent No, 1; therefore, it must be presumed that respondent No, 1 illegally dispossessed the complainant. He relied upon the case of Nabi Bux (supra). Story, in nutshell, in that case was that respondent filed a complaint stating that he had acquired a parcel of land and the accused person forcibly occupied the same through arms and force and remained in possession. No element of forcible taking away of the possession was alleged. In the present case, what is alleged, is that possession was handed over by the complainant to respondent No, 2 and the respondent No, 2 handed over the possession to respondent No,
1. Therefore,, there is no element of forcible taking of possession. Learned counsel next relied upon Mohammad Akram's case (supra). It was observed by Supreme Court as under:-- "The Illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants. The careful examination of the relevant provisions in the Act would reveal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum. ... The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants."
31. ' The above citation shows that the, Supreme Court has held that Illegal Dispossession Act would have no applicability to the cases, which are already pending between the parties. As I will refer to later, there is a pending dispute between the parties and proceedings are going on.
32. ' Learned counsel next relied upon Muhammad lkhlaq's case (supra). In this case, record and report of Mukhtiarkar showed that the respondent had raised a boundary wall on the area, claimed by complainant and location of land claimed by respondent was not established. The case is again distinguishable because in the present case, it is stated by the complainant that had handed over the possession to respondent No, 2 and it was respondent No, 2, who handed over the possession to respondent No,
1. Malik Muhammad Akram's case (supra) was the next case. In this case, High Court observed that in the earlier round of litigation up to Supreme Court, it had been held that possession by respondent No, 1 over land in dispute was illegal and possession of disputed land was handed over to appellants. Thus, grabbing land by respondent amounted to illegal dispossession. In Mumtaz Hussain's case (supra), Supreme Court observed that as the question of title of the property was pending before competent Court of civil jurisdiction before filing of the complaint,' therefore, the Supreme Court declined to interfere in the matter and observed that after decision of civil dispute, if it is in favour of the appellant, he could approach the Court under section 4 of the Act of 2005. All the cases, relied upon by learned counsel, are therefore, distinguishable.
33. Moreso, in the context of the fact that 1st class civil suit has been filed by sons of respondent No,
1. It is true that the plaint of that suit was rejected under Order VII, Rule 11, C.P.C. On the ground that it was prematurely filed and appeal against the E order of Civil Court was dismissed by Sessions Court but revision is still pending in this Court. However, as far as the parties are concerned, they are still litigating on the question of title of property.
34. ' There were only two witnesses, who appeared in the Court. One was the complainant and other was a defence witness, Abdul Razzaq. In his evidence, complainant admitted that a Faisla was held on 25-5-2007. He admitted that civil suit was pending before he filed the complaint on 24-3-2008.
35. He also admitted that criminal case under sections 420 and 511, P.P.C. Was instituted by him at Police Station, C-Section against present two respondents for breach of trust and that was disposed of by consent of. The parties. As against him, defence witness Abdul Razzaq appeared and he stated that there was a dispute between the complainant and respondent No, 1 and respondent No, 1 had purchased 20 per cent share on 19-7-2011 by way of agreement of sale and a Faisla was held on 25-5-2007 where it was decided that the possession of only ground floor is to be given to Habib Ismail and, consequently, the possession was given to Habib Ismail. He stated that,Faisla was reduced to writing and he and one Iqbal Baboo were witnesses to Faisla. It is that Faisla and that sale agreement, which are subject-matter of the civil litigation and plaint of that civil litigation has been rejected only on the ground that the suit was filed before the period for performance of the contract was over and, therefore, it was premature. Since revision is pending, I refrain from further commenting on that aspect of the matter but one thing, which clearly emerges, is that at the time when this complaint was filed (in the body of the complaint, mention of Faisla is made in para 7) civil litigation was already in existence. In the presence of civil dispute between the parties in accordance with the Judgment of Supreme Court in the case of Mumtaz Hussain (supra), the complainant should have waited for the result of civil litigation between the parties.
36. Above are my reasons, for which this Criminal Revision Application was dismissed, vide short order, announced in open Court on 22-8-2011. As far as contention of Mr. Tejwani that since earlier F.I.R.
37. Was lodged by the complainant and it was disposed of on the basis of compromise and therefore, complainant amounted to double jeopardy is concerned, in view of the conclusions, that I have reached, I do not think that any decision is required on this point.