Wiqar Ahmad, J. This order is directed to dispose of the instant petition filed by petitioner , under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. Petitioner namely Shamsher Ali filed a complaint before the learned Sessions Judge, Swat under Section 3 of the Illegal Dispossession Act, 2005 (hereinafter referred to as 'Act' ), complaining therein that he had purchased a plot measuring 1 Kanal situated in Khasra No. 543 of Moza Amankot Tehsil Babozai, District Swat, which had also been described by boundaries given in the petition. Petitioner claimed to have purchased the plot vide sale deed dated 18.08.2004, in respect of which mutation No. 814 has also been attested in his favour on 14.09.2004. He claimed to have obtained possession of the spot and had been running as owner and in possession from the date of its purchase. He has also asserted in his complaint that when he visited the said area on 14.01.2017 at 10:00 AM along with one Muhammad Bilal, he found the respondents digging part of his above stated land with the aim and object of dispossessing the petitioner . With these allegations, he brought the complaint under Section 3 of the Act in Court of learned Sessions Judge, Swat on 20.02.2017 along with an application under Section 7 of the Act, for interim possession.
3. Report of the SHO concerned was called by the Court, which was accordingly submitted on 01.03.2017. The learned Court rejected the complaint vide order dated 03.07.2017. Feeling aggrieve d there-from, petitioner has filed the instant constitutional petition with the following prayer; "It is therefore, humbly prayed that on the acceptance of this writ petition, the judgment and order dated 03.07.2017 of learned Additional District Judge-VI/IZQ, Swat may kindly be set aside and the complaint filed by the petitioner may kindly be remanded back to the trail Court with the direction to decide the same on merit. Any other relief which this august Court deems fit may also be granted in favour of petitioner ."
4. Learned counsel for petitioner submitted during the course of his arguments that the Court below made reliance on judgment in the case of Bashir Ahmad vs Additional Sessions Judge, Faisalabad and 4 others reported as PLD 2010 Supreme Court 661, which had subsequently been re-visited by a larger Bench of the Hon'ble Apex Court in the case of Mst. Gulshan Bibi and others vs Muhammad Sadiq and others reported as PLD 2016 Supreme Court 769 , and the judgment impugned herein cannot sustain, therefore.
5. Learned counsel for respondents No. 1 & 2 submitted in rebuttal that respond ents had got no antecedents of being a Qabza group and were co-owners in the property in dispute, therefore proceedings under section 3 of the Act were not maintainable against them. In support of his contention, learned counsel has placed reliance upon the judgments reported as PLD 2010 Supreme Court 661, 2012 YLR 2004 and 2016 PCr .LJ 929.
6. I have heard arguments of learned counsel for the parties and perused the record.
7. Perusal of record reveals that petitioner has purchased an area of 1 Kanal vide mutation No. 814 attested on 14.09.2004 in Moza Amankot Tehsil Babozai, District Swat. He has also claimed that he had been delivered possession at the time of sale by the vendor . Respondent No. 2 is claiming to have acquired the property in dispute vide mutation No. 1648 attested on 22.07.2016 in Moza Amankot Tehsil Babozai, District Swat. This is not clear whether respondent No. 2 had been handed over any possession on the spot and whether the person from whom he had purchased the property , had been in possession of any specific portion of land or not? Had evidence been recorded in the case, the factum of possession as well as the alleged fact of dispos session may have been clarified therein. The learned Court has chosen another course and has rather rejected the complaint summarily , which was not a proper exercise of jurisdiction vested in the Court, in the circumstances of the case.
8. The contention of learned counsel for respondents that respondents were not having any antecedents of being Qabza group and were not falling within the purview of the Act, is difficult to be agreed with. Employing of the words 'Qabza Group' in preamble of the Act cannot be given a super imposing operation over Section 3 and other provisions of the Act. It is a settled canon of interpretation of statutes that preamble of a statute may be read in aid of interpretation, where clarity is lacking in provisions of the statute, but where such provisions are clear , unambiguous and free from any doubt, effect has to be given to literal meaning of the statute. In the Twelfth edition of Maxwell on the Interpretation of Statutes , by P. St. J. Langan , this basic principle has been explained on the strength of judgment of House of Lords in the case of Attorney General vs. H.R.H. Prince Ernest Augustus of Hanover (f19571 A.C. 436) as follows; "In that case, Lord Normand said (at pp. 467, 468): "When there is a preamb le it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as an aid to cons truing the enacting provisions. The preamble is not, however , of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act or even in related Acts. There may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble. Again, the preamble cannot be of much or any assistance in construing provisions which embody qualifications or exceptions from the operation of the general purpose of the Act. It is only when it conveys a clear and definite meaning in comparis on with relatively obscure or indefinite enacting words that the preamble may legitimately prevail."
A similar view has also been expressed by S.M. Zafar in his book 'Understanding Statutes' , which is reproduced hereunder for ready reference; "If an enactment is clear and unambiguous, no preamble can qualify or cut down the enactment or override the plain provisions of a statute. Whether the preamble be considered as an integral part of the statute or not-the general rule with regard to its effect upon the enacting part of the statute has always been that if the meaning of the enactment is clear and unequivocal without the preamble, the preamble can have no effect whatsoever ."
Mr. Justice Khilji Arif Hussain (as his Lordship then was) while giving his separate note in a similar case of Mumtaz Hussain vs Dr. Nasir Khan and others reported as 2010 SCMR 1254 , had thrown light on the interpretation of preamble in the following words; "It is a cardinal rule of interpretation that objects made Reasons of a Statute is to be looked into as an extrinsic aid to find out legislative intent only when the meaning of the Statu te by its ordinary language is obscure or ambiguous. But if the words used in a Statute are clear and unambiguous then the Statute itself declares the intention of the Legislatu re and in such a case it would not be permissible for a Court to interpret the Statute by examining the object and reasons for the Statute question."
9. Section 3 of the Act is itself clear , which says that; "(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property .
(2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to, any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code.
(3) Whoever forcibly and wrongfully dispossesses any owner of occupier of any property and his act does not fall within sub-section (1), shall be punished with imprisonment which may extend to three years or with fine or with both, in addition to any other punishment to which he may be liable under any other law for the time being in force. The pers on dispossessed shall also be compensated in accordance with provisions of section 544-A of the Code."
The substantive provisions of the Act including Section 3 do not create and distinguish between different classes of individual viz-a-viz operation of the law. Whoever dispossesses a person unlawfully , comes within the mischief of Section 3 of the Act. Earlier view of the Hon'ble Apex Court expressed in the case of Bashir Ahmad vs Additional Sessions Judge, Faisalabad and 4 others reported as PLD 2010 Supreme Court 661 has been re-visited by a larger Bench of the Hon'ble Apex Court in the case of Mst. Gulshan Bibi and others vs Muhammad Sadiq and others reported as PLD 2016 Supreme Court 769 , wherein the Hon'ble Court has held as follows; "The legislature while enacting a special law for awarding punishment for a crime, in its wisdom, may or may not describe any particular category of persons who could be prosecuted. Where a special law after making a particular act an offence also describes the category of persons who could only be prosecuted then unless such person falls within the described category , he cannot be prosecuted. Where the special law only describes the offence or a set of offences and seeks to punish any person and every person who is found to have committed the described offence then the terms like 'anyone', 'any person' 'whoever' and 'whosoever' are used for the offenders in order to include all offenders without any distinction. In such a case, the offender may belong to any class of offenders, he as an accused can be prosecuted under such law."
10. The fact that respondent . No. 2 has become owner by entry and attestation of mutation No. 1648 attested on 22.07.2016 in Moza Amankot Tehsil Babozai, District Swat in the revenue record, does not give immunity to respondents from operation of provisions of the Act. The judgment of Bashir Ahmad supra had been given in the case of co-sharers, which had subsequen tly been declared by the Hon'ble Apex Court to be a bad law in its larger Bench judgment in the case of Mst. Gulshan Bibi supra . Neither co-owner can therefore claim immunity from provisions of the Act nor can co-owner be given a license to dispossess another , by force. The learned trial Court failed to exercise jurisdiction vested in it, according to law and thus the judgment impugned herein was suffering from jurisdictional defect.
11. By allowing the instant writ petition, order dated 03.07.2017 of the Court of learned Additional Sessions Judge- VI, Swat, impugned herein is set aside. The learned trial Court is directed to proceed the matter according to law by allowing parties to produce their respective evidences and thereafter decide the matter . 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.