IJAZ AHMED CHAUDHRY, J. --- Appellants Habib Ullah Zia Ullah and Azhar Shamim seek setting aside of the judgment dated 18.11.2009 passed by a learned Single Judge in Chamber of the Lahore High Court, Multan Bench, Multan through which Writ Petition No, 6389 of 2009 filed by the appellants and Writ Petition No, 7380 of 2009 filed by Abdul Manan, complainant, have been dismissed.
2. Brief facts of the case are that complainant Abdul Manan filed a complaint alleging therein that he had taken on rent house No, 45/46 Block "C" from Junaid-ur-Rehman son of Khalil-ur-Rehman during the period from January, 2008 to 30th November, 2008 in order to use the same for preparation of sweets and other bakery items and had established a Karkhana in the said house where the raw material like sugar, ghee, extract flour, meat or milk product, a machine for making yeast, a machine for mixing the sugar and three fridges, a cash amount of Rs, 3,00,000/- alongwith other articles were lying and on the night between 27/28.2.2008 the appellants have taken forcible possession of the said premises. This incident was witnessed by Abdul Rehman, Ghulam Rasool, Ghulam Hussain, Muhammad Iqbal, Naseer and Bilal. The complainant stated in the complaint that he has illegally been dispossessed by the appellants from the said house and they have committed offence under Section 3 of the Illegal Dispossession Act, 2005. After summoning of report from the SHO of the concerned Police Station appellants were summoned to face the trial.
Charge was according framed under Section 3(2) of Illegal Dispossession Act, 2005 to which the appellants pleaded not guilty and claimed trial. In order to establish guilt of the appellants, complainant himself appeared as PW-1 and also produced Abdul Rehman as PW-2 who is an employee of the complainant and Azhar Hussain, Inspector/SHO as PW-3. The appellants in their statements under Section 342, Cr.P.C. denied the allegations and claimed that the complainant himself had given the possession of the premises on 27.2.2008 and no illegal act has been committed by them and this complaint has been filed in order to usurp arrears of rent amounting to Rs, 1,00,000/- and Rs, 25,000/- for electricity bills. The appellants had also produced DW-1 Sh.
Mehmood Ahmad, DW-2 Muhammad Ashraf Qureshi and also copy of complaint Ex. DA, order dated 7.12.2006 Ex.DB and other documents including the ejectment petition filed against the complainant. After hearing learned counsel for the parties learned Trial Court found the appellant guilty of the offence under Section 3(2) of Illegal Dispossession Act, 2005 and sentenced all of them to three years R.I. and fine of Rs, 20,000/- each and in default of payment of fine, each convict was to undergo S.I. for six months and Rs, 30,000/- as compensation to be paid to the complainant u/s. 544, Cr.P.C. by each convict and in default to further undergo S.I. for six months each. They were also directed to restore the possession of the disputed property to the complainant and the Senior Civil Judge was directed to depute a Bailiff for the restoration of the possession to the complainant.
As no appeal was provided under the Illegal Dispossession Act, the appellants were constrained to file Writ Petition before the Lahore High Court challenging their conviction and sentence. The complainant also filed Writ Petition for enhancement of the sentence. Both these writ petitions have been dismissed vide impugned judgment.
4. Leave to appeal was granted by this Court vide order dated 16.3.2010 which reads as under:-- Inter alia contends that the learned Courts below have not appreciated the evidence on record in its proper perspective; that a close reading of the statement of Azhar Hussain PW-3, who investigated the matter and came to the conclusion that the petitioners are owners of the property, subject-matter of this petition; that the rent was not paid by the respondent and possession was delivered to the petitioners voluntarily which on account of some dispute was exploited and a case was got registered which culminated in the impugned conviction.
2. Having heard learned counsel for the petitioners at some length, leave to appeal is granted to consider the afore-referred points or any other which may arise."
5. Zia Ullah one of the appellants is present and seeks time to produce his counsel as he has changed his counsel, namely, Mr. Inam Ullah Hashmi but we find that he has not submitted any power-of-attorney of a counsel who is to appear on his behalf, therefore, his request is turned down. The complainant is also present in person alongwith his counsel, namely, Mian Ghulam Hussain,.AOR. Mr. Arif Raja, learned Additional Advocate General has appeared on behalf of the State.
6. Case of appellant No, 1 Habibullah is that the complainant Abdul Manan had taken the disputed property on 15.10.2004 on the monthly rent of Rs, 4,000/- from him and being neighbour no rent deed was written and orally it was settled between him and the complainant that the complainant will vacate the premises on fifteen days' notice and he will also make the payment of electricity bills. After taking possession of the said property by the complainant the electric meter was got converted from residential into commercial. The complainant paid the rent for some months and then became defaulter and also did not pay the electricity bills, as such, final notice was issued to the complainant for vacating the house in October, 2007. The complainant requested for four months' extension and on 27.2.2008 he had vacated the house at about 7/8.00 p.m. in the presence of the witnesses. However, the complainant stated that his some articles were lying in the said premises and promised that he will take these articles in few days after making the payment of dues of rent and electricity bills outstanding against him. Appellant No, 1 locked the house and started residing there. However, the electric meter was disconnected due to non-payment of the electricity bills. Thereafter appellant No, 1 started making payment of the electricity bills in instalments.
7. We have gone through the record and also the statements of the witnesses produced by the complainant. The question determinable before us is as to whether the facts and circumstances of the instant case do constitute the offence punishable under sub-section (2) of Section 3 of the Illegal Dispossession Act, 2005? The aforesaid provision of law having direct relevance in the instant case is reproduced below:--- "3. 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 owner or occupier of such property.
(2) Whoever contravenes the provisions of the sub-section (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."
'Now while discussing the evidence produced by the parties before the learned Trial Court, we find that it is no where mentioned that the appellants belong to land mafia, Qabza Group or property grabbers. Admittedly PW-3, namely, Azhar Hussain, Inspector/SHO, who is star witness of the complainant, had investigated the case lodged by the complainant. This witness has categorically stated in the examinatioh-in-chief that according to his investigation after joining both the parties, Habib Ullah and Zia Ullah were found owners of the disputed property and they had given the property to the complainant on rent 3%. years before. Abdul Manan became defaulter in payment of rent and also did not pay the electricity bills whereafter appellants Habib Ullah and Zia Ullah locked the outer door of the house and the story narrated by the complainant that he had taken the house on rent from Junaid-ur-Rehman was false. He also admitted that the appellants were not armed with any weapon and had not attacked the house. It is also admitted that he had not heard that the accused appellants belonged to Qabza Group, however, he stated that he heard that the complainant had earlier taken over the possession of two-three sites regarding which cases were registered against him.
8. Complainant while appearing as PW-1 has not stated a single word that the appellants belong to a Qabza Group and were involved in such activities, so it is the complainant side who has failed to establish that the appellants belong to Qabza Group or they were land grabbers. The complainant side has not produced any evidence oral or documentary to establish that the appellants had the credentials or antecedents of being property grabbers. So, it was a dispute between two individuals over immovable property and as per allegation the appellants have taken illegal possession of the property, being rightful owners, from the tenant who has taken the property on rent and committed the default in payment of rent and electricity bills inasmuch as the appellants do not belong to a class of property grabbers or Qabza Group and no case was made out under Section 3 of Illegal Dispossession Act. Reference is made to the judgment of a Full Bench of the Lahore High Court in Zahoor Ahmad and others v. The State and others (PLD 2007 Lahore 231) wherein it has been held that the Illegal Dispossession Act, 2005 was restricted in its scope and applicability only to those cases where a dispossession from immovable property has allegedly come about through the hands of a class or group of persons who could qualify as property grabbers/Qabza Groups/land mafia and the said Act was being invoked and utilized by the aggrieved persons against those who have credentials or antecedents being members of the Qabza Groups or land mafia. It was further held that the Illegal Dispossession Act, 2005 has been found to be completely nugatory to its contents as well as objectives. The aforesaid view was upheld by this Court in the case of Mobashir Ahmad v. The State (PLD 2010 SC 665). In view of the case-law referred above, it is established that the said law is applicable only to those accused persons who have the credentials or antecedents of Qabza Group and are involved in illegal activities and belong to the gang of land grabbers or land mafia. In the case in hand it has been found by us that there is no evidence oral or documentary to establish that the appellants belong to the Qabza Group or land grabbers. Even otherwise no such allegation has been made against the appellants in the complaint filed by the respondent Abdul Manan or in the F.I.R. for the same incident lodged on the next day, or by the PWs in their depositions made by them before the learned Trial Court. Even PW-3 Azhar Hussain, I.O. during the cross-examination has admitted that he had never heard about the appellants' involvement in such-like activities or their belonging to the group of land grabbers or Qabza Group rather the complainant is involved in such-like cases.
9. In the above circumstances we find that it was a dispute between two individuals over the possession of the property and the facts and circumstances of the case were not sufficient to hold the trial under Section 3 of the Illegal Dispossession Act, 2005 against the appellants and the learned Trial Court illegally connected the appellants with the offence falling under Section 3 of the Illegal Dispossession Act which has been made for special purposes and for special objects and had wrongly sentenced the appellants. Learned High Court has also not taken into consideration whether the appellants could be convicted under Section 3 of the illegal Dispossession Act. Who passed the judgment in a mechanical manner. Accordingly we allow this appeal and set aside the judgment of the learned High Court as well as of the learned Trial Court, All the three appellants are acquitted of the charge. They are already on bail vide order of this Court dated 17.3.2010, there bail bonds are discharged.
10.As the writ petition filed by the appellants was dismissed, the possession of the property was delivered to the complainant but as we have hold that the appellants were not guilty of offence under Section 3 of the Illegal Dispossession Act, the respondent Abdul Manan is directed to hand over the possession of the disputed premises to the appellants within a period of seven days from the receipt of copy of this order, failing which, Senior Civil Judge shall ensure the restoring/handing over of possession of the said property to the appellants without any wastage of time.