' FAROOQ ALI. CHANNA , J.---This criminal acquittal appeal has been filed against the order dated 21-10-2010, passed by the IInd Additional Sessions Judge, Karachi East in Criminal Complaint No, 76 of 2010, whereby, the trial Court acquitted the respondents under section 265-K, Cr.P.C.
2. Briefly, the facts of the case are that the House No,R-151, Sector-7, Scheme-36, admeasuring 45 Sq. Yds. Situated in Gulshan-e-Zahoor, Lines Area, Karachi, initially was allotted by K.D.A to one Mukhtiar Ali Zaidi, who sold out the said plot to one Muhammad Naseem and executed General Power of Attorney in his favour. Muhammad Naseem sold the said plot to Mst. Firdous Bibi from whom Anwar Khan, the father of the appellant purchased the same in the month of October, 1998 through General Power of Attorney. Subsequently, the said house was transferred in the name of Anwar Khan vide the Letter dated 27-5-2003 and finally leased out in his favour on 21-12-2004 by K.D.A. The father of appellant constructed boundary wall on the said plot. In the year 2005 the father of the appellant had gone to his native place Larkana leaving some parts of mason's tool in the said plot under lock and when in the month of August, 2005 he came back he found that the respondents after demolishing the boundary wall merged the said plot with their house and thereby occupied the same illegally, therefore, the appellant filed criminal complaint under section 3, 4 of Illegal Dispossession Act, 2005 (hereinafter referred as Said Act, 2005).
3. The trial Court referred the complaint to S.H.O., who after conducting inquiry through S.I Munir submitted the report before the trial Court whereafter the complaint was brought on file and the process was issued against the respondents.
4. During trial the respondents filed application under section 265-K, Cr.P.C. Which after notice to the appellant was heard and allowed vide Order dated 21-10-2010, whereby, the respondents were acquitted by trial Court observing that the father of the appellant through his Advocate sent a legal notice to the respondents B mentioning that in the year 1998 the respondents had broken the backside wall of the property in question and occupied the same illegally, since Illegal Dispossession. Act, 2005 was promulgated on 6th July, 2005 without having retrospective effect, therefore, no cognizance of the offence of illegal dispossession, before the promulgation of said Act, 2005 can be taken under the said Act 2005, hence the trial Court allowed the application under section 265-K, Cr.P.C. And acquitted both the respondents leaving the appellant at liberty to approach the civil Court and file suit for possession, if she desired.
5. I have heard Mr. Shamshad Ali . Qureshi, learned counsel for the appellant, who has contended that the impugned order is suffering from material irregularities and illegalities as the same was passed without appreciating the facts of the case brought on record by the appellant, hence the impugned order is not sustainable in the eyes of law. The trial Court while passing the impugned acquittal order of the respondents has ignored the admitted fact of the ownership of the plot and its lease documents in favour, and possession of the appellant, whereas, no title document was possessed or executed in favou'r of the respondents as such their possession over the said plot was proved to be illegal. The learned counsel has further contended that the trial Court while acquitting the accused under section 265-K, Cr.P.C. Has taken into consideration the sole ground that the deceased father of appellant in the legal notice sent to respondents had stated that they had occupied the plot in the year 1998 which was a bona fide mistake/ typographical mistake otherwise how it was possible that a person had been illegally dispossessed from a property in the year 1998, which property he had purchased in the year 2003. Learned counsel further contended that it was a bona fide mistake regarding the year of dispossession mentioned in the legal notice, therefore no such plea was taken by the appellant in the complaint filed under the said Act but yet the trial Court has acquitted the respondents by extending them the benefit of said bona fide mistake on the part of the father of appellant without an opportunity of rectifying the same by leading the evidence. Learned counsel has also invited the attention of the. Court towards an order passed in Criminal Revision No,24 of 2006, whereby the trial Court was directed to decide the matter after recording evidence. Learned counsel has relied upon the cases of Muhammad Yaqoob v. The State and 3 others reported as 2004 PCr.LJ 301, Mst. Zaib-un-Nisa v. Rehmat and 2 others reported as 2011 PCr.LJ 666 and 2011 YLR 1566.
6. Conversely, Mr. Javed Haleem, the learned counsel for the respondents has contended that the trial Court while passing the impugned order has appreciated the proposition of law that the provisions of Illegal Dispossession Act, 2005 are not applicable to the offences of illegal dispossession which took place prior to promulgation of said Act. The learned counsel has further contended that besides the year of dispossession as mentioned in the legal notice issued on behalf of the father of appellant to the respondents, the other documents annexed with the complaint by the appellant also show that the alleged incident had taken place prior to the promulgation of said , Act. Learned counsel has produced the certified copy of certain applications addressed to the concerned authorities for taking action against the respondents. The said, applications were sent in the month of June, 2005, which show that the alleged incident had taken place before June, 2005 when the Illegal Dispossession Act, 2005 was not in the field. Learned counsel has also relied upon the cases of Bashir Ahmad v. Zafarui Islam reported as PLD 2004 SC 298, Mst. Sahida Saleem v. Muhammad Naseem and others reported as PLD 2006 SC 427 and The State v. Raja Abdul Rehman reported as 2005 SCM R 1544. Learned counsel has further contended that the appellant after the impugned order was passed, has also filed civil suit for compensation and possession against the respondents.
7. I have considered the arguments and perused the record so also the impugned order which is based upon the proposition of law that since the Illegal Dispossession Act, 2005 had no retrospective effect, therefore, no cognizance can be taken under the said. Act of the offences which took place before the promulgation of the Act, 2005. In the instant case although the learned counsel for the appellant has taken plea that it was bona fide mistake on their part mentioning the year 1998 of their dispossession, but they have failed to bring on record anything to show that from sending the legal notice dated 21-11-2005 to the respondents till the date they did not get the said mistake rectified being bona fide mistake on their part. The appellant or her deceased father had not mentioned in any correspondence with the higher police officials, courts or with the respondents mentioning the actual date of their alleged illegal dispossession. On the' contrary from the applications moved to the police officials for taking action' against respondents, it appeared that the alleged incident of dispossessing the appellant had taken place before June, 2005 as such at this stage after passing a considerable time, it seems to be an afterthought plea that mentioning the year 1998 of their illegal dispossession in the legal notice was a bona fide mistake. Besides above the trial Court after receiving the criminal complaint referred the same to S.H.O. Brigade twice for holding the inquiry and in both the reports submitted before the trial Court it has been stated that they have recorded the statements of persons of locality namely (1) Abdul Raheem, (2) Sardar Khan, (3) Zahid Latif, (4) S. Naeem Ahmed and (5) Muhammad Habib, who have corroborated the version of the respondents that they are occupying/residing in the premises in question since 25/26 years. The said reports also show that the offence of illegal dispossession of the appellant if any, had taken place before June, 2005 whereas, the Act, 2005 was promulgated on 6th July, 2005, as such no cognizance under the said Act can be taken against the offence of illegal dispossession which took place before the promulgation of Act, 2005. On this point I am also fortified in a matter of Jehangir Khalid and others v. Ghulam Farooq and others reported as 2007 M LD 573, wherein, it has been held that that:-- "The Illegal Dispossession Act, 2005 (Act XI) of 2005 was promulgated from 7th July, 2005, i,e, the alleged dispossession took place much before the promulgation of the Act. Since the provisions of the Act cannot be applied retrospectively, therefore, the act of respondents Nos.1 to 3 does not fall within the ambit of the Act."
8. For the discussion and law laid down as mentioned hereinabove the impugned order seems to have been passed properly in accordance with law. The case laws relied upon by the Advocate for the appellant are distinguishable from the facts and circumstances 'of the present case on the case of Muhammad Yaqoob (supra) the acquittal appeal was allowed as the trial Court acquitted the accused on the basis of supplementary challan submitted after one year from the submissions of earlier challan considering the supplementary challan as additional evidence and in the case of Mst. Zaib-un-Nisa (supra) the order under section 265-K, Cr.P.C. Was set aside on the ground that earlier another application under section 265-K, Cr.P.C. Was dismissed wherein it was observed that the matter requires recording of evidence but subsequently without recording the evidence the accused were acquitted on another application under section 265-K, Cr . P. C .
9. Beside above, during arguments the learned counsel for the respondents has raised another plea that the case against them comes within the meaning of Jeopardy under section 403 Cr.P.C.
As earlier the respondents were facing the same charges in respect of the same offence and were acquitted. He has pointed out that earlier an F.I.R. No,202 of 2005 under sections 506-B, 457, 452, 448, 380, P.P.C. Was lodged by the father of the appellant at Police Station Brigade, which after investigation was recommended for disposal being false F.I.R. But the concerned Judicial Magistrate took the cognizance of offence and thereafter acquitted the respondents by order dated 8-3-2010. He has further contended that another Criminal Complaint No,1 of 2006 under the Act, 2005 in respect of the same incident was filed by the father of the appellant, the same was subsequently withdrawn and thereafter this third criminal complaint was filed by the appellant being the legal heir of deceased Anwar Khan, who allegedly was dispossessed from the property involved in this case. Learned counsel for the appellant has not controverted the above facts, however, his version was that the F.I.R. No,202 of 2005 was lodged in respect of theft committed by respondents of some parts of mason's tools lying in the plot, whereas, the Criminal Complaint No,1 of 2006 was withdrawn and not decided on merits as such the provisions of section 403, Cr.P.C. Will not be attracted.
10. I have perused the record with assistance of learned counsel of both parties. In the first round of criminal litigation the father of the appellant lodged the F.I.R. No,202 of 2005 with Police Station Brigade with the same allegations/ charges mentioned above. The challan was submitted, ultimately the respondents were acquitted. In the second round of litigation the father of appellant filed Criminal Complaint No,1 of 2006 under the Act, 2005 and the trial Court took the cognizance ultimately the said complaint was withdrawn for filing instant complaint.
11. Before parting with the application of section 403, Cr.P.C. In the instant case it would be appropriate to reproduce the said section asunder:-- -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 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 36, or for which he might have been convicted under section 237.
12. It is an admitted fact that after trial in respect of the same incident mentioned in the F:I.R. No,202 of 2005 of Police Station Brigade the respondents were acquitted. Whereas, in the second round of litigation the Criminal Complaint No,1 of 2006 under the Illegal Dispossession Act, 2005 was withdrawn. It is pertinent to mention that under section 9 of the said Act 2005, it is provided that unless otherwise provided in this Act the provisions of Code of Criminal Procedure, .1898 shall apply to the proceedings under this Act, and since no specific provision for the withdrawal of complaint under this Act is provided, therefore, the withdrawal of criminal complaint shall be deemed to have been withdrawn under section 248, Cr.P.C, consequently the accused shall stand acquitted baring the retrial of the accused in accordance with the provisions of section 403, Cr.P.C. And since the acquittal of the respondents from earlier complaint under the said Act, 2005 and F.I.R. No,202 of 2005 of Police Station Brigade in respect of same offence as is the subject-matter of the instant complaint remains in force, the respondents/accused cannot be retried as such prima facie the trial Court while acquitting respondents has exercised its powers vested in section 265-K, Cr. .P.C.
Correctly and in accordance with law by applying judicial mind, the impugned order due to aforesaid facts and proposition of law needs no interference of this Court.
' The above are the reasons of dismissing the criminal acquittal appeal vide short order dated 10- 9-2012.