TARIQ SALEEM SHEIKH, J.--- This appeal is directed against order dated 9.2.2016 passed by the learned Additional Sessions Judge, Dera Ghazi Khan, whereby he accepted application under Section 265-K, Cr.P.C. moved by Respondents Nos,2 to 8 and acquitted them of the charge.
2. Brief facts of the case are that the Appellant filed a complaint under Sections 3 and 4 of the Illegal Dispossession Act, 2015 (the "Act"), against Respondents Nos, 2 to 8 stating that House No,74, Black No,34, Dera Ghazi Khan City (the "Property"), was an evacuee property and he and his brother Muhammad Nazir Sajid were living therein.
They applied to the Evacuee Trust Property Board for its allotment but it fraudulently transferred the same to Muhammad Yousaf son of Fareed Muhammad. About a decade ago, the Appellant and his brother entered into an agreement with the said Muhammad , Yousaf for the purchase of the Property in consideration of Rs,10,00,000/-..They paid him Rs,8,00,000/- as earnest money while the remaining amount was to be paid at the time of the execution of the sale-deed. Subsequently Muhammad Yousaf reneged from his commitment and refused to complete the sale. On 1.9.2010, the Appellant and his brother filed a suit for specific performance of the contract against him in the Civil Court at Dera Ghazi Khan. At one stage, Muhammad Yousaf tried to dispossess them from the Property but they foiled, his attempt. On 28.6.2013, he executed a sale deed in favour of Respondent No.3 (Raheel son of Ihsan-ul-Haq) arid transferred its title to him although civil litigation was pending.
On 1.9.2013, Respondents Nos,2 to 8 along with 35/40 other persons armed with deadly weapons forcibly entered the Property , abducted the Appellant and Muhammad Nazir Sajid and took away their household articles, cash and jewelry . The local police reached the spot and rescued them from their illegal confinement. The Appellant lodged FIR No,31 1/2013 dated 1.9.2013 at Police Station City Dera Ghazi Khan for offences under Sections 342, 354, 380, 452, 148, 149, P.P.C. but the police did not take any action against the accused. On 31.1.2014, he filed a private complaint under Sections 3 and 4 of the Act against Respondents Nos,2 to 8. The learned trial Court requisitioned report from the local police who confirmed the Appellant's version that he and his brother were dispossessed from the property on 1.9.2013. The learned trial Court recorded cursory evidence produced by the Appellant and then summoned Respondents Nos, 2 to 8. On 16.7.2015 it framed charge against them to which they pleaded not guilty and claimed trial. On 16.11.2015 the statement of the Appellant/Complainant was recorded but his cross-examination was reserved on the request of the learned counsel for Respondents Nos, 2 to 8. On 14.12.2015, the said Respondents moved an application under Section 265-K, Cr.P.C. which the learned trial Court accepted vide order dated 9.2.2016 and acquitted them of the charge. Being aggrieved, the Appellant filed a petition under Section 417(2), Cr.P.C. before this Court for Special Leave to Appeal which was granted vide order dated 29.3.2017.
3. The learned counsel for the Appellant contended that the impugned order dated 9.2.2016 was contrary to law and thus could not be sustained. He argued that the, learned trial Court had erred in holding that the application of the Act was limited to land grabbers and Respondents Nos, 2 to 8 could not be prosecuted thereunder as there was no evidence that they belonged to that category . He maintained that the Act made no distinction between land grabbers and other people and every person who dispossessed a lawful owner or an occupier from a property was liable thereunder . The learned counsel further contended that the Appellant's complaint was competent and it could not be dismissed on the ground that a civil suit in respect of the Property was pending. In support of his contentions he relied upon "Tariq Khan Mazari and 3 others v. Government of Punjab through Secretary Industries and 3 others" (PLD 2016 SC 778) and "Shaikh Muhammad Naseem v. Mst. Farid a Gul" (2016 SCMR 1931 ). The learned Deputy Prosecutor General supported this appeal.
4. On the other hand, learned counsel for Respondents Nos, 2 to 8 controver ted the above contentions and defended the impugned order . He conte nded that the Appellant's complaint was not maintainable as he had lodged FIR No,31 1/2013 in respect of the alleged occurrence and civil suit was also pending. He maintained that the judgments of Hon'ble Supreme Court of Pakistan did not apply to the instant case because they were not retroactive. He prayed for dismissal of this appeal.
5. Arguments heard. Record perused.
6. The Appellant filed a complaint under Sections 3 and 4 of the Act against Respondents Nos, 2 to 8 alleging, that they illegally dispossessed him and his brother Muhammad Nazir Sajid from the Property on 1.9.2013. The learned trial Court, recorded cursory evidence produced by the Appellant and directed the SHO concerned to hold an investigation under Section 5 of the Act who submitted a report which supported his version. After considering all this evidence he was persuaded to summon Respondents Nos,2 to 8 and indict them. The contention of the learned counsel for Respondents Nos,2 to 8 that the said complaint was not competent because the application of the Act was limited to land grabbers has no substance. The preamble of the Act explicitly stipulates that its object is to protect lawful owners and occupiers against illegal or forcible dispossession from their immovable properties.
The august Supreme Court has held that the Act has a wide scope and aims at checking not only the land grabbers or the Qabza groups but any person (even an individual) who indulges in such activity . In "Mst.Gulshan Bibi and others v . Muhammad Sadiq and others" (PLD 2016 SC 769 ) it ruled: "The Act aims granting efficacious relief to lawful owners and occupiers in case they are dispossessed by anyone without lawful authority . Section 3(1) of the said Act by using the terms 'anyone' and 'whoever' for the offenders clearly warns all persons from committing the offence described therein and when found guilty by the court are to be punished without attaching any condit ion whatsoever as to the maintainability of the complaint. So all that the Court has to see is whether the accused nominated in the complaint has enter ed into or upon the property in dispute in order to dispossess, grab, control, or occupy it without any lawful authority .... In any 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 the 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."
7. Again, in " Shaikh Muhammad Naseem v . Mst. Farida Gul " (2016 SCMR 1931 ) the Apex Court held: "The substantive provision of Illegal Dispossession Act i,e, Section 3 expressly uses general terms such as 'no one' and 'whoever' for the offender . This clearly indicates that the widest possible meaning is to be attributed to these terms. Thus the provisions of Section 3 clearly demonstrate that whosoev er commits the act of illegal dispossession, as described in the Illegal Dispossession Act, 2005 against a lawful owner or a lawful occupier , he can be prosecuted under its provisions without any restriction."
8. The contention of the learned counsel for Respondents Nos, 2 to 8 that the Appellant could not file a complaint under the Act because he had already lodged FIR No,31 1/2013 (supra) was under the general law (Pakistan Penal Code, 1860) is also not tenable. An aggrieved person is not barred from availing remedy under the Act if he has got FIR registered under the general law or vice versa. The concept of double jeopardy is attracted where the accused has been tried by the Court of competent jurisdiction for the offence charged and there is judgment or order of acquittal. Mere lodging of FIR and filing of complaint under the Act does not attract the rule of double jeopardy . Reference in this regard may be usefully made to the case of "Abdul Hafeez v. Additional Sessions Judge-VII South Karachi and 2 others " (PLD 2009 Karachi 350 ).
9. The pendency of civil litigation in respect of the Property does not bar filing of a complaint under the Act either .
The learned trial Court has erred in holding otherwise. In the case of Shaikh Muhammad Naseem (supra) the Hon'ble Supreme Court held: "Any Act which entailed civil liability under civil law as well as criminal penalty under criminal law, such as the Illegal Dispossession Act, 2005, a person could be tried under both kinds of proceedings, which were independent of each other . Once the offence reported in the complaint stood proved against the accused within the confines of the provisions of the Illegal Dispossession Act, 2005 then he could not escape punishment on the ground that some civil litigation on the same issue was pending adjudication between the parties.... Irrespective of any civil litigation that may be pending in any Court, where an offence, as described in the Illegal Dispossession Act, 2005, had been committed, the proceedings under the said Act could be initiated as the same would be maintainable in law ."
10. In his book Judicial Review of Public Actions (Second Edition, pp. 690-1), Justice (Retd.) Fazal Karim writes that there are two theories regarding judicial decisions. One is described as the declaratory theory and the other as the judicial law-making theory (or the doctrine of "prospective overruling"). Blackstone in his Commentaries, 69 (15th Edition, 1809) stated the common law rule that the duty of the Court was "not to pronounce a new rule but to maintain and expound the old one." The declaratory theory propounds that "the Judges do not make or change the law but discover and declare a law which is throughout the same. If an earlier decision is overruled, the law is not changed rather the correct principle is discovered which always existed." Resultantly , it is retrospective in operation. On the other hand, the judicial law-making theory postulates that in deciding questions of law the judges do make and change the law. In the words of Canfield, it is based on the premise that courts have "a duty to announce a new and better rule for future transactions whenever they reach a conviction that the old rule (as established by the precedents) is unsound though they would be compelled by stare decisis to apply the old and condemned rule to the transaction which has already taken place." According to this view, the application of the new rule is prospective. The learned author maintains that this second theory is being increasingly accepted it England and the United States.
11. In Pakistan, Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, commands that the decisions of the Supreme Court, to the extent that they decide a question of law or are based upon or enunciate a principle of law, shall be binding on all other courts in the country . Similarly , Article 201 (but subject to Article 189) makes the decisions of the High Courts binding on the courts subordinate to them. According to some comments tars, under Section 212 of the Government of India Act, 1935, the law declared by the Federal Court and by any judgment of the Privy Council was binding on and was to be followed by all Courts in India and that by Article 163 of the 1956 Constitution the law declared by the Supreme Court was binding on all Courts in Pakistan. Both these provisions enacted the doctrine of precedent and in doing so adopted the declaratory theory of judicial decisions.
However , the Constitutions of 1962 and 1973 do not follow the language of the Government of India Act, 1935, and the 1956 Constitution and by using the words "enunciates a principle of law" adop t the judicial law-making theory .
This is not so. In "Malik Asad Ali and others v. Federation of Pakistan through Secretary , Law, Justice and Parliamentary Affairs Islamabad and others " (PLD 1998 SC 161) the Hon'ble Supreme Court of Pakistan categorically held: "The Courts while interpreting a law do not legislate or create any new law or amend the existing law. By interpreting the law , the Courts only declare the true meaning of the law which already existed."
The above view was reiterated in case "Regarding Pensionary Benefits of the Judges of Superior Courts " (PLD 2013 SC 829 ).
12. In our legal system the Supreme Court has vast powers while delivering its judgment or making an order .
Ordinarily its judgments operate prospectively but it can lay down parameters for its implementation and even direct that it would be retrospective. Reliance is placed on "Muhammad Yusuf v.The Chief Settlement and Rehabilitation Commissioner , Pakistan, Lahore and another" (PLD 1968 SC 101),"Regarding Pensionary Benefits of the Judges or Superior Courts " (PLD 2013 SC 829) and "Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others " (2018 SCMR 1956 ). However , it does not affect past and closed transactions. Reliance is placed on "Muhammad Yusuf v.The Chief Settlement and Rehabilitation Commissioner Pakistan, Lahore and another " (PLD 1968 SC 101),"Income-T ax Officer , Central Circle II, Karachi and another v.Cement Agencies Ltd." (PLD 1969 SC 322) and "Pir Bakhsh represented by his Legal Heirs and others v .The Chairman, Allotment Committee and others" PLD 1987 SC 145 ).
13. In Asad Ali's case (supra), the Hon'ble Supreme Court laid down the following principles regarding its decisions under Article 189 of the Constitution: "(i) It is well-settled law that a new or an amending statute touching the vested rights of the parties operates prospectively unless the language of the legislation expressly provides for its retrospective operation. However , the presumption against retrospective operation of a statute is not applicable to statutes dealing with the procedure as no vested right can be claimed by any party in respect of a procedure. The only exception to the retrospective operation of a procedure law is that if by giving it a retrospective operation, the vested right of a party is impaired then to that extent it operates prospectively . The above principles applicable to a new or an amending statute, however , cannot be applied strictly to the law declared by the Courts through interpretative process.
(ii) By interpreting the law, the Courts only declare the true meaning of the law which already existed. Therefore, to that extent the law declared by the Court is applicable from the date the law is enacted.
(iii) As under the Constitution only the decision of this Court on a question of law or in so far it enunciates a principle of law is binding on all Courts and authorities, the possibility that a provision of law or Constitution before it came up for interpretation before this Court, was interpreted or understood differently cannot be ruled out.
Therefore, if as a result of interpretation of a law or a constitutional provision by this Court, the existing interpretation or meaning of the law is changed, then it is more of a matter of public policy based on justice, equity and good conscious than a rule of law, that an innocent person who acting bona fidely on the prevailing interpretation or meaning of law created a liability or acquired a right, be protected against the change brought about in the existing state of law as a result of its interpretation by this Court.
(iv) Where a person or authority acts in defiance of a clear provision of law or Constitution' or the interpretation by the Court does not have the effect of changing the prevailing understanding of the meaning of the provision of law or the Constitution, the question of protecting any one against the effect of such interpretation by the Court on the principle that the effect of interpretation by given prospective operation, does not arise. For example, if a particular provision of law or the Constitution has not come up for interpretation before any Court and the functionaries responsible for giving effect to it have consistently interpreted the said provision and understood it in a particular scene and acted upon it accordingly over a length, of time, but all of a sudden the functionaries decide to follow a new practice by changing the interpretation of that provision.
(v) When the matter is brought before the Court, the solitary deviation by the functionaries made on the basis of changed interpretation may be struck down by the Court as illegal and unconstitutional and the previous interpretation and practice followed by the functionaries may be upheld being in accordance with the law and Constitution. In that event, neither the functionaries nor the person deriving any benefit on the basis of the new practice founded on the changed interpretation of the provision of law or the Const itution could defend the illegality or unconstitutionality of the action on the principle that the interpretation given by the Courts be applied prospectively and not retrospectively , as in such a case the Court is striking down the very first deviation of the functionaries on the ground that the deviation from the previous practice/interpretation is illegal and unconstitutional.
(vi) The principle that the change in the state of law as a result of interpretation by this Court is to be given effect to from the date the Court interpreted the law is also not applicable in those cases which could be brought under challenge in accordance with the law before or after the interpretation of the provision by this Court.
(vii) This Court while adopting an interpretation of the provision of the law or the Constitution which is at variance from the existing view, it is only declaring the correct law as an apex Court. By doing so, it neither legislates any new law nor amends the existing law. Therefore, while interpreting a provision of law or the Constitution, this Court can also provide the date from which the interpretation given by it is to come into effect, keeping in view the nature of the provision it is interpreting, the likelih ood of possible prejudice which may be caused to an individual or a body of individual and the requirement of justice in the case."
14. In the instant case, the alleged occurrence took place on 1.9.2013 and the Appellant instituted the complaint under Sections 3 and 4 of the Act on 31.1.2014. The learned trial Court passed the impugned order on 9.2.2016 and the Appellant filed PSLA before this Court on 15.3.2016. Since the case was pending when the Hon'ble Supreme Court delivered judgments in the cases of Tariq Khan Mazari and Shaikh Muhammad Naseem , supra, the law laid down therein has to be applied to it by virtue of Article 189 of the Constitution. It is inapplicable only to past and closed transactions. In Muhmmad Yusuf's case, supra, A.R.Cornelius, CJ explained: "This judgment was delivered on the 2nd November , 1964, and its consequence was that as from that date all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of the Constitution to apply the rule as laid down by the Supreme Court in cases coming up before them for decision.
It did not have, and it cannot be contended that it had, the effect of altering the law as from the commencement of the Act so as to render void of its own force all relevant orders of the Settlement authorities or of the High Court made in the light of the earlier interpretati on which was that the exercise of the delegated power was subject to the provisions in Charter VI of the Act."
Again, in " Dilber Khan v . Muhammad Ashraf' (PLD 2013 SC 171 ), the Apex Court said: "...latest judgment of this Court...which enunciates the principle of law... should be given full effect and strictly followed till the time the lis Stands finally terminated/determined...This is irrespective of the fact whether the case was instituted or the decision was passed by the first Court or subsequent courts. It is the final and conclusive judgment/opinion of the apex Court deciding a question of law, or based upon or enunciates a principle of law which shall have the binding effects and should be adhered to in letter and spirit, obviously if it otherwise qualifies the test of precedence over the earlier view, under the known principles of interpretation and application of the precedent case law ."
15. In view of what has been discussed above, this appeal is allowed and the impugned order dated 9.2.2016 is set aside. The case is remanded to the learned Additional Sessions Judge, Dera Ghazi Khan, who shall decide the same expeditiously on merits in accordance with law .