' MUHAMMAD HASHIM KHAN KAKAR, J.---This criminal appeal has been preferred against the judgment dated 21st February, 2009, passed by-the Sessions Judge, Lasbella at Hub, whereby he has convicted and sentenced appellant Shahid Hakeem under section 3(2) of the Illegal Dispossession Act 2005 to suffer two years' R.I. And fine of Rs,10,000, in default whereof to further undergo S.I. For one month. He was also directed to pay an amount of Rs,20,000 as compensation to the complainant as required under section 544-A of the Cr.P.C.
2. Brief facts of the case, necessary for disposal of this appeal, are that respondent No,1 Altaf Hussain Agha filed a complaint dated 24th March, 2008 under sections 3, 6, 7 and 8 of the Illegal Dispossession Act, 2005 against one Javed Sikandar (the then Managing Director of Bolan Casting Ltd.), wherein it was alleged that the complainant was the proprietor of Messrs Abbas Spinning and Weaving Mills, who purchased in auction the property of Bela Engineering Ltd. From the Official Assignee of Sindh High Court failing under Survey No,35 in being Survey Nos.253, 88, 120, 80, 194, 258, 259, 79, 81, 83, 89, 99, 111,112, 115, 116, 117, 118,119, 193, 195, 196, 197, 198, 252, 254, 255, 256, 257, 260, 261, 264, 360, 102, 87, 99, 91, 113, 114, and 192, situated at Hub, District Lasbella, measuring about 419 acres. It was further alleged that prior to Bela Engineering Ltd., the aforesaid property was granted to Messrs Ghandara Industries Ltd. By the Government of Balochistan by means of agreement dated February, 1970. The representative of the Official Assignee, High Court of Sindh Karachi, after purchase, has handed over the vacant possession of the property in question to the complainant without any interruption. He further averred that since the complainant is residing at Karachi, therefore, in his absence, some persons, including the respondent Javed Sikandar, have illegally occupied certain pieces of the property, at which he filed a complaint in the Court of Sessions Judge, Labella, which was accepted vide judgment dated 20th March, 2008 and in pursuance of the said judgment, vacant possession of the said pieces of land was handed over to him. He also alleged that, thereafter, the respondent Javed Sikandar and others also encroached upon his property measuring 12 Acre, 1-Rod, 9-Poles falling under Khasra No,102/90-91, at which, he approached different authorities including the respondent to vacate the property, but with no fruitful results.
3. After registering the complaint and submission of the inquiry by the SHO police station, Hub, the trial Court has taken cognizance of the matter. The complainant/respondent, to substantiate the charge, examined eight witnesses. Thereafter, the appellant was examined under section 342 of the Cr.P.C. He also recorded his statement on oath under section 340(2) of the Cr.P.C. And produced two witnesses in defence. The trial Court, after close of parties' evidence, vide impugned judgment, convicted and sentenced the appellant, as mentioned hereinabove, hence this appeal.
4. I have heard Mr. H. Shakil Ahmed, learned counsel for the appellant, Mr. Munir Ahmed Langove, learned counsel for respondent No,1, Mr. Abdul Sattar Durrani, Deputy Prosecutor-General, representing the State and also perused the record with their valuable assistance.
' Mr. H. Shakil Ahmed, learned counsel for the appellant, contended that the Illegal Dispossession Act, 2005 (the Act) had come into force on 30th June, 2005, whereas the land in question was purchased by Bolan Castings Limited (hereinafter referred to as `BCL') and the boundary walls had been built much before the date of promulgation of the Act and, admittedly, the Act, having no retrospective effect, could not be invoked to cover a past and post matters. He further contended that the most important ingredient of the Act is that there should be dispossession of the owner or occupier of the property and in case the owner of occupier did not level the allegation of his dispossession or forcible occupation of accused over the property, then the provisions of the Act are net applicable. He further argued with vehemence that, for constituting an offence under the Act, it is the duty of the prosecution to establish mens rea on the part of the accused. There is no evidence whatsoever in nature in that regard. Merely because the appellant continued to manage the land within the boundary walls constructed before he entered office under BCL, will not import mens rea on his part.
' On the other hand, Mr. Munir Ahmed Langove, appearing on behalf of the respondent/complainant and Mr. Abdul Sattar Durrani, Deputy Prosecutor-General, representing the State, contended that sufficient documents have been brought on record, establishing the fact that the vacant possession of the property in question was handed over to the complainant by the Official Assignee of the Sindh High Court and a piece thereof was illegally and unlawfully occupied by the BCL authorities, thus, the trial Court has rightly exercised its jurisdiction by making an order of restoration of the possession to the complainant and conviction of the appellant, thus, impugned judgment, being passed after proper appraisal of evidence, does not require any interference by this court.
5. There is no cavil to the proposition that the Act, having no retrospective effect, may not be applicable to the cases of unauthorized occupants pending before any other forum on the date of promulgation of the said Act, but if the case of an illegal occupant was not already A pending before any other forum on the date of enforcement of the Act, the same would squarely fall within the ambit of the Act. In this regard, reference can be made to a case of Rahim Tahir v. Ahmed Jan and 2 others reported in PLD 2007 SC 423.
6. The perusal of record reveals that the initial inquiry was conducted by P.W.4 Muhammad Amin, IP, who submitted his report as Exh.P/4-G, which shows that appellant's company BCL was found in possession of an access of area of about 4 acres of land belonging to the complainant Agha Atif Hussain. The record also indicates that on 26th. January, 2009, one Hafeez-ur-Rehman, Advocate, was also appointed as Local Commissioner, who, after visiting the site in presence of both the parties, submitted his report dated 12th February, 2009, which reads as under:-- "As per revenue record of rights the area of 09-03-31 acre under Khasra Nos.107/3, 90/2, 91/1, 102/3, 102/4 and an area of 13-01-12 under Khasra Nos. 102, 113, 89, 90, and an area 0-0-20 poles under Khasra No,102/1, total area measuring 23-01-25 Acres, is entered in the name of Bolan Casting Factory Hub, but on measurement it was found 25-03-15 Acres as such the Bolan. Casting Factory Hub possesses an excess area of 02-01-30 Acres."
' It would also be advantageous to reproduce hereinbelow the memo of possession Exh.P/3-B, showing the handing over vacant possession to the complainant, which speaks as under:- "Handed over today i.e, 5-5-2003 physical and vacant possession of land bearing Survey No,35, measuring about 419 acres, situated at Hub Chowki, District Lasbella, Balochistan being property in J. .Misc. No,13 of 2000 (Messrs Engineers Limited In liquidation) to Mr. Altaf Hussain Agha son of Raza Hussain Agha, Proprietor of Messrs Abbas Spinning Weaving."
7. A careful perusal of the ocular account furnished by .The complainant's witnesses and quoted portion of Exh.P/3-B and Exh.P/4-G of the report of concerned SHO, would show and suggest me to believe that the appellant's company viz Bolan Casting Ltd, without any lawful authority, occupied an excess area, belonging to the complainant, the vacant possession whereof was handed over to the complainant by the Official Assignee, of the Sindh High Court. It has also been established that the said portion of his property, after completion of the boundary wall, has been, allegedly, occupied by the appellant's company. Thus, the findings of the trial Court up to that extant, seem to be made after proper appraisal of evidence and needs no interference by this court.
8. So far as conviction and sentence awarded to the appellant is concerned, the record indicates that initially the complaint was instituted on 4th June, 2008 against Javed Sikandar with the allegation that in his capacity as Managing Director of the Company had encroached upon an area of 12-1-9 Acres, falling under Khasra No,102/90-91, whereas the present appellant viz Shahid Hakeem was not on the scene at the relevant time and he has joined the BCL on 15th July, 2005 and was made CEO in December, 2006, thus, he cannot be held criminally liable under the provisions of the Act. Legally speaking, iii order to constitute an offence under section 3(1) of the Act, complainant must disclose. Existence of both i.e, unlawful Act (actus rea) and criminal intent (mens rea). Admittedly, mere encroachment is something different from illegal dispossession, as the former does not involve intention of grabbing of the property. I am afraid that in another case titled as "complaint No,2 of 2007, instituted under the Act by the same complainant against Moula Bakhsh and others", the Court of Session in its judgment dated 20th March, 2008 had found the respondents therein guilty of trespassing upon the land of complainant, but had not awarded them any type of imprisonment or fine and only ordered for the restoration of possession, but, in the instant case, conviction and sentence has been awarded to the appellant, despite the fact that his name was inserted in the complaint after its institution, that too without any legal justification. Thus, the conviction and sentence awarded to the appellant Shahid Hakeem by means of impugned judgment is set aside and he is acquitted of the charge. He is on bail, his bail bond stands discharged..
' The appeal, with above modification in the impugned judgment, is, accordingly, disposed of.