OMAR SIAL, J. -The Appellants have impugned a judgment dated 30-4-2016 passed by the learned 1st Additional. Sessions Judge, Ghotki. In terms of the said judgment the Appellants were sentenced to suffer R.I. of seven years and pay a fine of Rs,10,000/- each for an offence punishable under section 3 of the Illegal Dispossession Act, 2005.
2. Brief facts of the case as narrated in the direct complaint filed by Mohammad Harif on 2-2-2010 are that on 1-9-2009 at about 8:00 a.m. when he reached his land along with his father and brother, he saw the Appellants armed with deadly weapons were cutting the trees on the land and were also cultivating the same. The complainant inquired from the Appellants why they were on his land. Upon his query, Appellants Saleh Muhammad Chachar and Ali Chachar started aerial firing and attacked the complainant party and quarrel broke out. The Appellants. then took away the wood of thirty trees from the land. Mohammad Harif attempted to lodge an FIR against the Appellants but the police declined to do so. he then went to the Regional Police Officer of Sukkur with his complaint who directed him to approach the District Police Officer. The DPO too did not do anything to help Harif. On 5-10-2009, Harif again went to the land and saw that the Appellants were still cultivating the land. They again threatened him. For three months. Harif attempted to resolve the dispute with the intervention of some notables of the area but all efforts were in vain. Hence, he filed the direct complaint from which this appeal arises.
3. In trial, Mohammad Harif was examined as PW-1 whereas Harif's brother, Alaf Chhijjan was examined as PW-2.
4. The Appellants recorded their statements under section 342, Cr.P.C. on 3-2-2016 in which they stated that they were the real owners of the property and therefore pleaded innocence.
5. The impugned judgment was announced on 30-4-2010.
6. I have heard the learned counsel for the Appellants as well as the learned counsel for the complainant and have also examined the record with their able assistance. My observations are as follows.
7. I will address first the two preliminary objections which have been raised by the counsel. The counsel for the Appellants have argued that the provisions of the Illegal Dispossession Act, 2005 were not attracted as the Appellants are neither land grabbers nor members of the Qabza Mafia. In support of this contention, learned counsel relied on a judgment of the Hon'ble Supreme Court titled Bashir Ahmed v. Additional Sessions Judge reported at PLD 2010 SC 661. There have been conflicting judgments on the applicability of the Illegal Dispossession Act, 2005 however, this issue has been conclusively settled by a judgment of a Full Bench of the Hon'ble Supreme Court in the case of Gulshan Bibi and others v. Muhammad SadiQ and others reported at PLD 2016 Supreme Court 769. In this case, it has been held by their Lordships that "we conclude that in proceedings initiated under Illegal Dispossession Act, 2005, the issues which fall for decision would be whether the offence against a lawful owner or occupier, as described in the complaint has taken place and whether it is the accused who has committed it without any lawful authority. Anyone found committing an offence described in section 3 would be amenable to prosecution under the provisions of Illegal Dispossession Act, 2005 and no past record of the accused needs to be gone into by the court. In view of this judgment of the Hon'ble Supreme Court, the preliminary objection raised by the Appellants counsel is set aside.
8. The second preliminary objection was raised by the learned counsel for the complainant. He argued that the present appeal is not maintainable as the Illegal Dispossession Act, 2005 did not contain any provision for appeal or revision. In my opinion, it could not be the intention of the, legislature that the order passed by the trial court would be the final order and that no right of appeal or revision existed for the aggrieved party. This view is fortified by the provisions of section 9 of the legislation which has made the Code of Criminal Procedure, 1898 applicable to the Act. In an eventuality where a difficulty would arise, resort could be made to section 9 or the Act. Accordingly, an aggrieved person, had a right of appeal or revision as provided in the Cr.P.C. for redressal of his grievance. In view of the foregoing, the preliminary objection raised by the counsel for the complainant is set aside.
9. Now coming to the merits of the case. During the proceedings before the trial court and then again in appeal in this court, the parties have relied heavily on ownership documents of the land in question. Several documents were submitted by both sides in a bid to prove that they were the owners of the land in issue. That arguments, both in trial and appeal, have centered on the question of ownership. The trial court too, in its judgment has concentrated on the question of who the owner of the land was rather than on the question of dispossession as is envisaged by the Illegal Dispossession Act, 2005. It was not the jurisdiction of the learned trial court to determine ownership of the land in the proceedings before it.
10.Keeping in view the complex property transactions that have occurred in connection with the land and the litigation that the parties have entered into in the past coupled with the fact that the complaint does not clearly establish that the provisions of section 3 of the Act have been satisfied, it would have been appropriate if the trial court had initiated the procedure of investigation provided under section 5 of the Illegal Dispossession Act, 2005. This was not done.
11. The learned trial court while concluding that the land in issue was in the possession of the Appellants on and prior to 1-9-2009 (and it appears that they had been in possession for some years) has convicted inn sentenced them on the sole ground that they were not the owners of the property. As mentioned above, the question of ownership could not have been decided in the proceedings before the trial court. The complaint in itself also, while referring to dispossession. primarily focuses on trespass.
12. The exact area of land from where the complainant claimed he had been dispossessed was not identified. No independent witness was examined who could have testified that the complainant party was in possession of the land on the date it is alleged that the dispossession took place. In fact, no evidence apart from the complainant party statements (and copies of a bundle of disputed documents) was produced in trial to prove that an offence under the Illegal Dispossession Act, 2005 was constituted by the Appellants.
13.In view of the above reasons the appeal is allowed and the conviction and sentence awarded to the Appellants is set aside. The Appellants are acquitted of the charge(s) and should be released forthwith if not required in any other case.