' SYED MUHAMMAD FAROOQ SHAH, J.---Both captioned Criminal Appeals bearing Nos. S-156 of 2013 and S-163 of 2013 are arising from the same judgment, hence taken together. The appellants have assailed the impugned judgment, dated 13-12-2013, passed by the Presiding Officer, Special Court Sindh Public Property (Removal of Encroachment), Hyderabad, in Special Case No,2 of 2013 (The State Mehboob Ali and others), vide Crime No,2 of 2013, registered at Police Station Anti- Encroachment, Hyderabad, under section 8(i) Sindh Public Property (Removal of Encroachment), Act, 2010 read with section 34, P.P.C., whereby the appellants were convicted under section 8(i) of the Sindh Public Property (Removal of Encroachment), Act, 2010 and sentenced for 10 years' R.I. The learned trial Court with regard to the provisions of fine has observed that the market price has not determined by the Revenue Department, therefore, no fine can be imposed for the area encroached by the accused/appellants.
2. Succinct facts necessary for decision of instant appeals are that on 26-5-2012 complainant Ali Zulfiqar son of Haji Abdul Qayoom resident of Matli District Badin, Mukhtiarkar Qasimabad, Hyderabad appeared and lodged three years belated F.I.R., under section 8(i) Sindh Public Property (Removal of Encroachment), Act, ''2010, wherein he stated that he is posted as Mukhtiarkar Qasimabad. Tapedar Muhammad Bachal Mirbahar, posted as Tapedar Taluka Qasimabad, under his subordination reported him that Survey No,107, which is the property of the Revenue Employees Society and Survey No,200, which is the property of Hyderabad Development Authority, in between these properties there is one Government 'Bhada' land, area of which is about 30/32 ghuntas which was possessed by accused (1) Mehboob Abro (2) Sikandar Ali, (3) Peerano Khan Abro (4) Rab Nawaz Abro and 03/04 unknown accused persons, since the year 2010 and had constructed Paka' houses aver it and are residing therein. On such information, complainant issued three notices to them, through Tapedar Muhammad Bachal Mirbahar, who reported that accused persons had refused to receive the notices, therefore, he pasted the notices over the walls. Such report was submitted before the A.C. Qasimabad. The Assistant Commissioner obtained necessary permission from Deputy Commissioner vide Order No, 1022 dated 25-10-2013 and then F.I.R. Was lodged at Police Station Anti-Encroachment, against the accused persons.
3. On completion of usual investigation, the appellants were charge-sheeted. After supplying the copies of relevant papers to the appellants charge was framed against accused/appellants which read as under:-- "Charge 20-11-2013 ' Syed Manazir Hussain Zaidi, Presiding Officer, Special Court, Sindh Public Property, (Removal of Encroachment), Board of Revenue, Sindh Hyderabad hereby charge you accused.
(1) Mehboob Ali son of Khuda Bux Abro
(2) Sikandar Ali son of Qadir Bux Abro
(3) Peerano Khan son of Maihar Khan Abro
(4) Rab Nawaz son of Muhammad Shafique Abro that you on 2010 at unknown time along with 3/4 unknown accused in pursuance of your common intention on the Government Land belonging to Revenue Employees Society and in between Survey No,107 to 200 belonging to Hyderabad Development Authority situated at Deh and Taluka Qasimabad District Hyderabad illegally occupied and constructed katcha pucca houses and residing therein, and have thereby committed the offence punishable under section 8(i) Sindh Public Property (Removal of Encroachment), Act, 2010 read with section 34 P.P.C. And within the cognizance of this Court.
And I hereby direct that you accused be tried by this Court on the said charges."
4. The appellants pleaded not guilty and claimed trial. To support its contention, prosecution examined Zafar Hussain, Inspector A.E. Cell Hyderabad as Exh.03, Javed Iqbal, Kotar Mukhtiarkar office Qasimabad Exh.04, Ali Zulfiqar, Ex- Mukhtiarkar Qasimabad Exh.05, Muhammad Bachal, Tapedar Tapa Qasimabad, Hyderabad Exh.06, Mir Muhammad, Inspector A.E. Hyderabad Exh.07. On conclusion of prosecution evidence, statement of accused were recorded under section 342, Cr.P.C. Exhs.9 to 12, wherein they have categorically-denied the allegations, levelled against them and stated that due to political rivalry they have been involved in this case.
5. The only point for determination as framed by the trial Court was that as to whether all the four accused in the year 2010 in pursuance of their common intention encroached the area/land/ Government 'Bhada' belonging to Sindh Government Employees Revenue Society and Hyderabad Development Authority situated in between Survey Nos. 107 and 200.
6. Learned counsel appearing for the appellants at the very outset submits that the judgment of the trial Court passed hurriedly in a slipshod manner, in violation of universal principle of "audi alterm partem", is not sustainable in law, as fair opportunity of defending the case has not been provided to the appellants/accused. Learned counsel appearing in Criminal Appeal No, 163 stated at bar that on 10-12-2013, evidence of P.Ws Zafar Hussain and Javed Iqbal was recorded, those were remained without cross-examination, as on the said date, he informed the learned trial Court, about his pre-occupation before this honourable Court. Learned counsel submits that even otherwise, he has shown his serious reservation about the conduct of the Presiding Officer of the Tribunal but his request was not acceded to. Learned counsel further submits that on 13-12-2013, he filed an application for adjournment, which was kept aside and at about 12:30 p.m, the Court called the witnesses those were not found present in the early hours and recorded their testimony which was remained without their cross-examination as the counsel were not found present, therefore, the material questions have not been put in the cross-examination by the accused themselves.
However, learned counsel submitted that the application filed under section 540, Cr.P.C, was allowed by the trial Court, by calling two witnesses on telephone without issuing summons/notice to them, recorded their evidence, without cross-examination by the counsel, three remaining P.Ws, were also called and they were also examined without any cross-examination of defence counsel.
It is submitted that On the very same day, statements of accused were recorded under section 342, Cr.P.C. And without affording-opportunity of hearing/final arguments, the judgment was pronounced, on the same day, whereby the appellants were convicted.
7. Perusal of the order dated 13-12-2013 available in the R&Ps supports the contention of learned counsel. It shall be advantageous to reproduce the order passed on the very crucial date i,e, 13-12- 2013 as under:- "13-12-2013.
' Case called. Accused Mehboob Ali, Sikandar Ali, Peerano Khan and Rab Nawaz confined in Central Prison Hyderabad, have been produced by Jail authorities. DDPP and defence counsel for accused Mehboob Ali and Sikandar Ali are present. Defence counsel for accused Rab Nawaz and Peerano called absent. Defence counsel for accused Mehboob All and Sikandar Ali filed application under section 540, Cr.P.C. For recalling P. Ws. Inspector Zafar Hussain and Javed Iqbal. Order passed thereon. Notice to DDPP. DDPP raised no objection. Order passed. Application allowed by consent. Process returned served. P.Ws Inspector Zafar Hussain, Javed Iqbal, complainant Ali Zulfiqar, Tapedar Muhammad Bachal and Investigating Officer Inspector Mir Muhammad are present. Defence counsel after moving adjournment application remained absent. Order passed on adjournment application. P. Ws. Inspector Zafar Hussain and Javed Iqbal re-called and reaffirmed. Defence counsel absent, opportunity given to the accused to cross-examine witnesses. Deposition of complainant Ali Zulfiqar recorded as Exh.05. He produced documents as Exh.5-A to Exh.5-N. Deposition of P. W Tapedar Muhammad Bachal recorded as Exh.6. Deposition of I.O. Inspector Mir Muhammad recorded as Exh.7. He produced daily diary entries as Exh.7-A and Exh.7-B. The learned DDPP closed the side of prosecution vide statement as Exh.08. Statements of accused Mehboob Ali, Sikandar Ali, Peerano Khan and Rab.
Nawaz recorded as Exh.09 to Exh.12. Accused did not examine themselves on oath nor lead defence evidence. Heard final arguments from accused in person and DDPP for the State.
Judgment announced. Accused Mehboob Ali, Sikandar Ali, Peerano Khan and Rab Nawaz are convicted under section 265-11(ii), Cr.P.C. For committing offence punishable under section 8(i)
Sindh Public Property (Removal of Encroachment Act) 2010 and sentenced to suffer R.I for 10 years, with benefit of section 382-B Cr:P.C. Accused are present in custody, they refused to put their signature /L. T. Is' on conviction slip and receipt. The copy of judgment supplied to all accused without costs. Accused remanded back to Central Prison Hyderabad along with conviction slip and Jail warrants for execution of sentence awarded to them."
8. Learned counsel submits that the aforementioned diary/order sheet depicts the conduct of Presiding Officer of the Court, that he has acted in a manner which tends to shake the administration of justice as the golden principles of Islamic concept as well as the law of the land has been violated, without providing opportunity of hearing, which is a universal principle, that no one should be condemned unheard.
9. On legal aspect of the case in hand, Mr. Zakir Hussain Bughio, learned counsel for appellant in Criminal Appeal No, 163 of 2013 submits that, even otherwise, the evidence of the P.Ws. Adduced by the prosecution before the trial Court was not sufficient to award conviction and submits that it is a case of misreading and non-reading of the evidence. Learned counsel submits that the star witness of the prosecution is Tapedar Muhammad Bachal, who informed the cotnplainant Ali Zulfiqar Memon about the encroachment of government ' bhada' land, deposed in his evidence that he found Pakka' constructed houses existing between the Survey Nos.107 to 200 and on his inquiry from the persons of the locality, he was disclosed that the present accused persons have illegally constructed and occupied the same since 2010. Learned counsel submits that the memo of arrest dated 27-10-2013, available at page 193 of the paper book reveals that appellants Rab Nawaz and Peerano were arrested from City School Sehrish Nagar and they were not apprehended from the alleged encroached houses, those were allegedly constructed about three years prior to lodging the F.I.R. Learned counsel submits that three notices under section 11-A of Land Revenue Act, 1967 regarding illegal occupancy of State land were allegedly issued within a period of 15 days but the same could not be served upon the appellants in violation of section 3(2)(b) of Anti- Encroachment Act, 2010 which provides that:-
(b) affixing it at a conspicuous place on or near the public property to which it relates or sending it by Registered post, UMS, TCS, or publication.
10. Learned counsel submits that the compliance of section 4 of the said Act, 2010, reproduced hereunder has also not been made, which provides the Review Petition to the applicants/alleged encroachers, against the order passed under subsection (1) of section 3 of the Act.
'4. Review.---(I) Any person dissatisfied by the order passed under subsection (1) of section 3 may, within three days from the service thereof prefer a review petition to Government or any authority or officer who has passed such order,
(3) Government or, as the case may be, the authority or officer as aforesaid may, after perusing the review petition filed under subsection (1) and giving an opportunity to the petitioner or his duly authorized agent or being heard, confirm, modify or vacate the order within fifteen days on receipt of petition."
11. Learned counsel for appellant submits that Tapedar has produced sketch Exh.-5/N available at page 46 of the file, which shows that names of the accused persons are not appearing in the alleged occupied land. It is 'submitted that alleged encroachers/appellants as per sketch have not been arrayed as accused in the F.I.R. Moreso, number of the houses have not been mentioned showing that which accused was found in occupation of which house. Learned counsel reiterated that the applicants have been involved in this case due to political rivalry and submits that the petitioners are neither putting up in the said houses nor they have encroached the said land but they have been falsely implicated in this case, just to achieve the political goal.
12. Conversely, Syed Meeral Shah, D.P.G, in view of aforementioned provisions of the said Act, candidly stated that the provisions of C.P.C. Are applicable in recording the evidence of witnesses.
It need not to iterate that the provisions of Qanun-e-Shahadat Order, 1984 in both civil as well as in criminal proceedings are 'ipso facto' applicable in the said judicial proceedings and even the procedure provided in Civil Procedure Code is more exhaustive. Admittedly, the provisions of Qanun-e-Shahadat Order have also not been complied with.
13. I have considered the arguments advanced from both the sides and carefully perused the R&Ps and the material available on record, with the assistance of both the learned counsel for appellants. Section 14 of Sindh Public Property (Removal of Encroachment) Act, 2010 provides the manner to proceed with the case. Section 14(3) of the said Act empowers the Tribunal of a Civil Court under the Code of Civil Procedure, as to summoning and enforcing the attendance of any person and examining him on the oath (b) receiving evidence on affidavit (c) compelling the production of documents (d) issuing commission for examination of witnesses or documents and more particularly, subsection (4) of section 14 enunciates that the proceedings before the Tribunal shall be judicial proceedings within the meaning of sections 193 and 228 P.P.C. Suffice is to say that neither the judicial procedure prescribed under section. 14 or the provisions of sections 3 and 4 of A the Act, 2010, have been followed in letter and spirit as the universal principle of law i,e, audi alteram partem' has been violated in such a manner that proper opportunity of hearing to the appellants has not been provided by deciding the case in summarily manner, in- violation of administration of justice and equity, therefore, the impugned judgment cannot be sustained under the law of the land, which is against the judicial norms as well.
14. It need not to reiterate that natural justice is another name of commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideas and human values. The administration of justice is to be free from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. The expressions "natural justice" and "legal justice" do not present a water- tight classification. It is the substance of justice which is to be secured whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logic prevarication, it supplies the omissions of a formulated law.
15. Speaking about fair trial guarantees in criminal proceedings in Islamic law or the Constitutional law, international law and general principles of law recognized by civilized nations and the interpretation of these sources by court decisions under Article 10-A of the Constitution as a law that has been enacted recently; and Islamic law that has been developed in the course of centuries, based on the Quran, the Sunna (the tradition about what the Prophet (S.A.W.) said or did or of his tacit approval of something said or done in his presence), idjma (consensus of the jurists), C and qiyas (analogy with Quran and Sunna drawn by jurists), or in the opinion of the (reason), as its chief sources complemented by further supplementary sources. According to a word of the Prophet (S.A.W), the diversity of opinion is a divine mercy and we must never forget that Islamic jurists, may take different views on the same issue all based on Islamic law, a fact that can be helpful in the development of law, e.g. Following the opinion that seems to be most appropriate to solve particular problem.
16. It is not out of context to make necessary clarification that the statute involved in this case does not allow the speedy disposition of controversy without adopting the necessary steps of procedure as enunciated in the subject Act. The D Statute nowhere prescribes summary plain or procedures to expedite the trial, hurriedly. It is also an admitted fact that to establish its case, neither inhabitant of the locality nor any other private person was examined by the prosecution. Undisputedly, the legal right of the appellants, safeguarded and respected by the Constitution of Pakistan has not been afforded in its true spirit. The trial has not been conducted and concluded in a fair and transparent manner, in which the truth may be received and given credence.
17. The above are the reasons of short order dated 14-2-2014, whereby the appeals were allowed and the conviction of the appellants recorded by the learned Tribunal was set aside. Let a copy of this judgment be transmitted to the learned Tribunal for perusal.