ROZI KHAN BARRECH, J.---Through this Criminal Revision Petition the petitioner has assailed the order dated 20.12.2017 passed by learned Additional Sessions Judge Khuzdar (trial court ) in complaint No.04 of 2017 whereby the complaint filed by the petitioner under sections 3 and 4 of Illegal Dispossession Act, 2005 (the "Act") was dismissed.
2. Precisely the relevant facts for disposal of the instant revision petition are that the petitioner/complainant filed a complaint under sections 3 and 4 of the Act against respondents before the trial court with the averment that he along with his family members were residing in Saudi Arabia for about 40/50 years and were visiting after about two or three years and the land in question of the petitioner were in the charge of the tenants/farmers, having landed property which are cultivated by them during rainy season. The landed property bearing Khewat No.21, Khasra Nos. 246, 252, area 101-22 Bunjar Qadeem and 15-0 Garden Moza Gongove Sharki District Khuzdar , which have illegally been occupied by the accused/respondents about a year back. It is further averted in the complaint that despite repeated approach to the concern ed Levies authorities no action has been taken against the respondents by them. The complainant have been deprived of their lawful ownership of the property .
Upon submission of the complaint the trial court called report from concerned Tehsildar and after hearing arguments of the parties dismissed the complaint of the petitioner on 20.1.2017.
3. I have heard the learned counsel for the parties and have also gone through the record of the case with their able assistance.
4. The learned counsel for respondents also raised objection on maintainability of the instant revision petition and contended that the criminal revision petiti on is not competent against the impugned order and the petitioner has to file an appeal under section 417(2), Cr.P.C. against acquittal. Learned counsel for the petitioner argued that against the order of dismissal of the complaint no appeal is provided, thus, the revisional jurisdiction of this court was invoked by filing the instant petition.
5. The petitioner approached the court of learned Sessions Judge by filing the complaint under the provisions of the Act, which is a special law for specific purpose. Plain reading of the Act reveals that it contained no provision to provide a right of appeal or revision to an aggrieved person against interim or final orders passed in the cases filed under the Act. The absence of the provisions to the effect never meant A denial of right of appeal to an aggrieved person under the Act. Rather section 9 of the Act is clear enough to extend the provisions of the Code of Criminal Procedure to the proceedings held under this Act, which is comprehensive enough to deal with the issue. Section 9 of the Act reads as under: "Section 9. Application of code : Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (V of 1898), shall apply to the proceedings under this Act."
Thus, absence of specific provision of appeal in the Act in no way effect the right of appeal or revision. Rather by virtue of section 9 of the Act the application of Cr.P.C. can be extended in the cases dealt under the Act and be pressed when the difficulty arises due to absence of a specific provision. Thus an aggrieved person has a right of appeal or revision as provided in the Code for redressal of his grievance.
6. In the case in hand there is no order of conviction or acquittal of the accused on the allegations made in the complaint. In addition no charge was framed; rather the complaint was dismissed before taking cognizance of the offence and framing of the charge. There was only an order for conducting of investigation as required under section 5 of the Act and on receipt of the report of Tehsildar concerned the trial court concluded that the matter between the parties was purely of a civil nature, thus not fall within the ambit of illegal Dispossession Act, 2005 resulting in dismissal of the complaint. The trial court was yet to start the proceedings on completion of the investigation, but instead of taking cognizance of the offence on basis of the available material, it arrived to the decision impugned in the instant petition. In absence of an order of acquittal or conviction on framing of the charge, a revision petition shall lie on dismissal of the complaint, this decides the maintain ability of the petition. This court now has to look into legality of the order in exercise of its revisional jurisdiction.
7. The provision of the Act being a special law is only applicable in cases wherein the person complained against was found to be not having title thereto, second that he has taken possession by use of force, thirdly that he had taken over the property without due course of law and fourthly that such person or persons belonged to group of land grabbers. Further Application/Complaint under this Act, 2005 can only be entertained if there is prima facie material against nominated accused and to my view civil nature dispute in no way can be allowed to be converted into criminal of fence.
Further provision of section 3 is applicable only to land grabbers. Reliance is placed in the case titled as Habibullah v . Abdul Manan (2012 SCMR 1533 ) wherein the Hon'ble Supreme Court held as under: "In view of the above case-law referred above, it is established that the said law is applicable only to those accused persons who have the credentials or antecedents of Qabza Group and are involved in illegal activities and belong to the gang of land grabbers or land mafia."
8. Further for the purposes of determination so as to appreciate as to whether case has been made out attracting the provisions of section 3 of the Illegal Dispossession Act, 2005 the court was required to examine, firstly that the property was immovable property , secondly that the person was the owner of the property or same was in his lawful possession, thirdly that the accused entered into or upon property unlawfully and fourthly that such entry was with the intention to dispossess.
9. Section 5 of the Illegal Dispossession Act, 2005, itself had given discretion to the court to satisfy itself as to the competence and maintainability of the complaint. No doubt spirit of law with reference to the provisions of Illegal Dispossession Act, 2005 is that "Two persons have been defined, who can approach the court of competent jurisdiction for enforcement of law (i) owner and the other is (ii) occupier and further it has been laid down specifically that the owner must be 'recorded owner' as has been laid down in the dictum as appeared in the judgment passed by this court in the case of Aliya Hussain v . Syed Ziauddin (PLD 2008 Quetta 27 ).
10. Having deep glance to the various provisions of 2005-Act and so also taking into consideration that the provisions of section 5(1) are broader in a sense that it empowers the court to have the matter investigated for any purpose as may relate to the complaint and be germane or relevant under the 2005 Act. Further section 202, Cr.P.C. and section 5(1) of the 2005 Act, are to be considered and read together , the legislature's intent behind the later provision is clear and unambiguous.
11. Now reverting to the merit of the case, the petitioner being the complainant was aggrieved of the act on part of the respondents, in result whereof he was dispossessed from his property . Report of the investigation submitted by Tehsildar reveals that the land in question consists of huge swathe of land and there exists an old dispute in respect of two Mouzas boundary . The report further reveals that respondent No.2 namely Abdul Hameed sold out a piece of land to one late Atta Muhammad in the year 1998 through a stamp paper in consideration of Rs.10,000/- and after his death his nephew namely Bashkal Khan Marri and his brothers have been in occupation of the land till now, where they built houses on it and also cultivated crops on some portion of land since long. The report further reveals that on the land in question solar tube well has been installed by the Gove rnment one year ago and same land is being cultivated by respondent No.2 namely Abdul Hameed. The report also reveals that there was also a dispute between the parties over the boundaries of two Mouzas and in this respect under the supervisor of Assistant Commissioner Khuzdar the boundaries of two Mouzas were demarcated by placing marks on the land in question in the presence of both the parties including complainants namely Bilal Ahmed.
12. Perusal of the impugned order reveals that it was admittedly passed pursuant to the receipt of investigation report from Tehsildar concerned, so also pursuant to affording chance of hearing extended to the counsel for the parties whereas the learned trial Court was supposed to have itself formed an opinion and appreciate as to whether prima facie complaint was made out within the four corners of law taking cognizance of the offence as the complaint in itself speaks that alleged dispossession took place a year ago, whereas the complaint was filed after one year .
13. The dispute between the parties has a long and chequered history and it is gleaned from the available record that under the supervision of Assistant Commissioner Khuzdar the boundaries of two Mouzas were demarcated by placing marks on the land in question in presence of both parties. It is a case of civil nature without adverting much to the facts of the cases inter se between the parties, lest the interests of either party may be prejudiced in the ultimate, suffice it to say that the basic idea and philosophy behind the enactment of Illegal Dispossession Act, 2005 was to rid the people from the menace of Qabza group/property grabbers and land mafia and to curb their activities to the maximum. In order to qualify to be a member of either of the said three groups or categories, the complainant has to bring sufficient evidence to show that the accused belong to a Qabza group, land mafia or have the credentials or antecedents of being property grabbers. Wisdom in this respect is sought from PLD 2010 SC 661, wherein it was laid down that 'Civil dispute cannot be allowed to be convert ed into criminal offence by implicating one or more co-owners and this would be misuse of the provisions of the Illegal Dispossession Act, 2005' and to my view if such practice is allowed to be continued the same would amount to misuse of provisions of Illegal Dispossession Act, 2005.
In view of the parameters mentioned in the Act ibid as well as the judgment referred , the petitioner has been unable to place the respondents in the said three laid down criteria. The trial court properly assessed the available material and arrived to a decision on the basis of the contents of the complaint, in addition to the investigation report. No case for illegal dispossession could be made out on basis of the available material. No illegality or irregularity on part of the trial court has been pointed out which need interference by this court. There is no merit in the petition, which is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.