1. This single judgment shall decide the above captioned writ petitions, being outcome of single judgment dated 24.01.2007, passed by the learned Additional Sessions Judge Layyah, whereby in a complaint under Illegal Dispossession Act, 2005, filed by Syed Ghulam Abbas Shah, Respondent No. 3 since dead (hereinafter referred to as complainant), Mirza Khan, ASI (petitioner in Writ . Petition No. 520/2007) Ghulam Yaseen, Ghti lam Qasim s/o Yaseen, Azam, Ghulam Abbas, Muhammad Aslam, Ashiq/ Hussain, Muhammad Hashim (petitioners in Writ Petition No. 542/2007), Khuda Bakhsh (since dead) and Muhammad Qasim son of Khuda Bakhsh (petitioners in Writ Petition No. 1752/2007) (all hereinafter referred to as the petitioners), were convicted under Section 3 of the Illegal Dispossession Act, 2005 and sentenced to Rigorous Imprisonment for 10 years, each.
2. 2.The facts are that the complainant filed a complaint under the Illegal Dispossession Act, 2005 (hereinafter referred to as Act), against the petitioners, with the contentions that about 32 years ago, he and his brother had purchased the land measuring 6. Marlas falling in old Khata No. 64, new No. 127 of village Jam Rid Thal, Kot Sultan, through sale-deed No. 2254 dated 14.07.1971, whereafter mutation of the property was also sanctioned and the complainant was occupying his share; at front side he had also constructed two shops and in one, was running a General Store, in the name and style "Momin Dee Hatee" on 21.12.2005 at about 2/3 P.M., the petitioners, while armed with fire-arms, attended the shop and started beating his son Ashab Hussain (PW-2); they put chilies in his eyes and Mirza Khan petitioner forcibly cot hold of him, snatched his mobile phone, amount and forcibly turned him out of the shop, while 'Saying that he was being taken to the police station and asked his companions (other petitioners) to occupy the shop and lock it; Mirza Khan (petitioner) while beating son of the complainant took and confined him in the police station; on receipt of information, the complainant attended the spot, where Syed Qaiser Sajjad, Fazal Hussain Shah, Syed Saijad Hussain Shah and other of the area were available, who had seen the occurrence; regarding the occurrence, the complainant informed the SHO of Police Station Kot Sultan but not listened because the police was in league with the petitioners; the petitioners were desperate, belonged to Qabza Group, involved in numerous criminal cases, which were pending in the Courts; the petitioners had no concern with the shop of the complainant and as such illegally occupied it and had also taken the articles valuing Rs. 1,50,000/-. It was requested that the proceedings under the Act may be initiated against the petitioners and they may be punished accordingly.
3. 3.On receipt of the complaint, a report from the police was called by the learned trial Court, cursory evidence of the complainant was recorded and the petitioners were summoned to face the trial. Charge against them was framed on 10.05.2006, to which they pleaded not guilty and claimed the trial, hence the prosecution evidence was summoned and recorded. The gist of the evidence led by prosecution witnesses was as under:--
(i) PW-1 Syed Ghulam Abbas Shah, the complainant had narrated almost the same facts as were described by him in the complaint (Ex.PA).
4. (ii)PW-2 Ashab Hussain, the son of the complainant (PW1) stated that the petitioners while dispossessing him from the shop, occupied it.
5. (iii)PW-3 F,azal Hussain, also stated about forcible occupation of the shop in question by the petitioners.
6. 4.After examination of the above said witnesses, the documents were tendered in evidence as Ex.PB/1-10, Ex.PC, Ex.PD, Ex.PE, Ex.PG, Ex.PH and Ex.PJ and the case for the prosecution was closed.
7. Thereafter, the petitioners were examined under Section 342 Cr.P.C, during which the questions arising out of the prosecution evidence were put to them and they denied almost all such questions, while pleading their innocence and false involvement in the case with mala fide. They opted to lead evidence in their defence and accordingly Muhammad Siddique, Saif Ullah and Allah Ditta made the statements as DW-1 DW-2 and DW-3, respectively. The petitioners had also tendered the documents in their defence. Finally the impugned judgment in the above mentioned terms was passed. Consequently, the writ petitions in hand.
8. 5.The learned counsel for the petitioners has argued that the petitioners are innocent and the complainant while leveling false allegations, had filed a false complaint, which during trial was not proved but the learned trial Court while ignoring all the norms of natural justice had pronounced the impugned judgment, which is not sustainable in the eye of law.
9. 6.The learned counsel for the complainant has vehemently opposed the writ petitions, while declaring the impugned judgment to be quite justified and call of the day.
10. 7.Arguments of both the sides have been heard and the record has been perused.
11. 8.During pendency of the writ petitions, Khuda Bakhsh (Petitioner No. 1 in Writ Petition No. 1752/2007) had died, hence the said writ petition to the extent of the above named petitioner was abated. During pendency of the writ petitions, Syed Ghulam Abbas Shah complainant had also gone to the next world.
12. 9.It has been observed that on filing of the complaint, as per requirement, the learned trial Court had obtained a report from the police, which was submitted, with the contention that a quarrel between both the parties had occurred on 21.12.2005, hence Mirza Khan ASI (petitioner) initiated proceedings under Sections 107/151, Cr.P.C. against both the parties; both sides had applied locks to the shop in question, which was given by the petitioner's party to Syed Ghulam Abbas Shah complainant on rent, who was not paying the rent, hence the petitioners had applied lock to the shop; regarding the shop in dispute proceedings under Section 145, Cr.P.C. were also initiated and sent to the Magistrate.
13. 10.The contention of the complainant was that the shop in question was falling in Khata No. 64 (old), 127 (new) of village Jam Rid That, Kot Sultan. An application moved by Ghulam Qasim a petitioner on 19.11.2005 to Tehsil Nazim Layyah is available on the record as (Ex.PH), whereby it was prayed that possession of the shop in question may be given to him, because the complainant was not paying the rent of the shop. The said application was filed prior to submission of the private complaint, which shows that prior to filing of the complaint there was a dispute between the parties, whereby the petitioners' party was claiming the complainant, to be tenant in the shop in question.
14. 11.According to the document (Ex.DF) from Khata No. 127 land measuring 1-Marla 2-Sarsahi was purchased by Ghulam Qasim a petitioner on 10.09.1995, whereas as per the sale-deed (Ex.DG) from the above mentioned Khata, Ghulam Qasim petitioner further purchased land measuring 2-Marlas.
15. An agreement between the parties regarding the property in dispute, executed on 01.08.2005 is also available on the record as (Ex.PE). All the above mentioned documents and proceedings clearly suggest that the parties were co-sharers in the above mentioned property. It by now has been settled that proceedings under The Illegal Dispossession Act, 2005 could not be initiated in cases of disputes over possession of immovable property, between co-owners or co-sharers, landlords and tenants and that Act is applicable only against those persons who are property grabbers, land mafia or Qabza Group, having credentials or antecedents of such activities.
16. Reliance in this regard may be placed on cases "Habibullah and others vs. Abdul Manan and others" (NLR 2013 Crl. 121), "Zahoor Ahmad and 5 others vs. The State and 3 others" (PLD 2007 Lahore 231) and "Muhammad Aslam ,vs. S.H.O. P.S. Ghaziabad District Sahiwal and others" (PLD 2015 Cr.C.
17. (Lahore) 50). In the case of Zahoor Ahmad (Supra), following guideline to the District Courts of Punjab was provided: The Illegal Dispossession Act, 2005 applies to dispossession from immovable property only by property grabbers/Qabza Groups/land mafia. A complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Sessions only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable-property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible or justifiable claim. In the case of an individual it must be the manner of execution of his design which may expose him as a property grabber.
18. (ii)The Illegal Dispossession Act, 2005 does not apply to run of the mill cases of alleged dispossession from immovable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Groups/land mafia, Le. cases of disputes over poesession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an ongoing Private dispute over the relevant property.
19. (iii)A complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being regulated by civil or revenue Court.
20. All the Courts of Session in the Province of the Punjab are directed to examine all the complaints under the Illegal Dispossession Act, 2005 pending before them and to dismiss all those complaints forthwith which are found to be not maintainable in terms of the interpretation of the said law rendered by us through the present judgment."
21. The august Supreme Court of Pakistan in case of Habib Ullah (Supra) held as under: "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."
22. 12.In the light of the above mentioned discussion and the dictums, the complaint under the Illegal Dispossession Act, 2005, filed by the complainant against the petitioners was not at all competent and proceedable, Therefore, the proceedings of the learned Trial Court resulting into the impugned judgment, could not be termed justified and valid. Resultantly, the writ petitions in hand are allowed, the impugned judgment is set-aside and the petitioners are acquitted of' the charge. They, by way of suspension of their sentence are on bail, hence their bail bonds are discharged.
23. 13.Before parting with the judgment, it is made clear that the parties to resolve controversy, regarding the property in dispute, may approach the proper civil forum.