TARIQ MEHMOOD JAHANGIRI, J: Through the instant criminal appeal filed under Section 8-A of Illegal Dispossession Act, 2005 the appellant has impugned judgment dated 02.02.2023, passed by learned Additional Sessions Judge (West) Islamabad, whereby the appellant was convicted under Section 3 of Illegal Dispossession Act, 2005, and sentenced to undergo R.I for a term of 03 years along with fine of Rs.20,000/-. In default of which the convict shall further undergo 06 months S.I.
02. Brief facts of the case are that respondent No.1 has filed a private complaint under Sections 3, 4, 5 & 7 of Illegal therein that he is overseas Pakistani and living at UK and is also attorney in respect of Plot No.88, Industrial Area, Sector I-9, Islamabad which is owned by his sister, who is also residing at UK permanently. Appellant / Khawar Mehmood was appointed as caretaker and was authorized to use some portion of plot for residence but he opened a small hotel there without permission.
When respondent No.1/complainant got knowledge of this fact, he removed the appellant and appointed Mr. Riaz Khan as caretaker. Later on, respondent No.1 came to know that the appellant has prepared a fake sale deed, by affixing the fake thumb impressions and signatures of complainant, even transferred the electricity connection in his name and also received rent by pretending himself as owner. On submission of complaint, SHO concerned was directed to submit detailed report after conducting inquiry and after providing equal opportunity to both the parties, SHO submitted through the report and hearing learned counsel for the complainant, complaint was admitted for regular hearing and the appellant / accused was summoned and charge was framed against him to which he pleaded not guilty and claimed trial. After recording the evidence and fulfilling all legal and codal formalities, learned trial Court has convicted the appellant under Section 3 of Illegal Dispossession Act, 2005 and sentenced him to undergo R.I for a term of 03 years along with fine of Rs.20,000/- vide impugned judgment dated 02.02.2023, hence the instant appeal.
03. Learned counsel for the appellant / accused inter alia contends that the impugned judgment is not sustainable under the law; insufficient evidence was produced on the basis of which appellant / accused was convicted; impugned judgment is based upon misreading and non-reading of the evidence; conviction order passed by learned trial Court is not in accordance with law and facts of the case; impugned judgment is arbitrary, capricious and reckless exercise of discretion, hence not sustainable in the eyes of law and is liable to be set aside.
04. Conversely, learned State Counsel assisted by learned counsel for the respondent No. 1/complainant has controverted the arguments advanced by learned counsel for the appellant and stated that learned trial Court has rightly It passed the impugned judgment and convicted the appellant; impugned judgment has been passed in accordance with law and facts of the case, therefore, instant appeal is liable to be dismissed.
05. Arguments advanced by learned counsel for the parties have been heard and record has been perused with their able assistance.
06. Admittedly complainant Gulfaraz Ahmed is neither owner of the property nor its occupier; it is mentioned in the complaint as well as in the statement of PW-1 (Gulfaraz) that plot was owned by real sister of complainant who lives in England and he (complainant) also lived in England, even no address and particulars of complainant in Pakistan are mentioned in the complaint or evidence recorded in the Court, rather only address of England is mentioned.
07. It is quite surprising that even attorney allegedly issued by Mst. Zahida Parveen, owner of the property in favour of complainant has not been produced in the evidence.
08. Though the criminal proceedings cannot be initiated by the attorney but in the instant case attorney has also not exhibited so, the status of complainant is considered as "stranger and he has no locus standi to file the complaint.
09. This Court specifically asked question from the learned counsel for respondent No.1 that how criminal complaint was maintainable under the law through an attorney which is also not placed on record; learned counsel for respondent has failed to satisfy this Court as to whether an attorney can file criminal complaint. In this regard, reliance is placed upon the following case laws: i. Usman Saleem Vs. Additional District And Sessions Judge III, Karachi East and 7 others, (2021 PCr.LJ Note 66 [Sindh]) ii. Muhammad Qasim Vs. Station House Office Police Station Khudabad, District Dadu and 7 others, (2016 MLD 1238) iii. Khalid Mehmood and 3 others Vs. Safdar Iqbal and another, (2017 PCr.L.J 1104). iv. Ghazanfar Ali Vs. M. Zahid Hussain and others, (PLD 2011 Lahore 179). v. Quaid Johar Vs. Murtaza Ali and another, (PLD 2008 Karachi 342)
Wherein, it is held that criminal proceedings through attorney are not competent / legal.
10. Criminal proceedings in the Court cannot be initiated through attorney since the "Criminal administration of justice recognizes only those as a witness or complainant who either have seen, heard or at least perceived any fact towards the offence hence an attorney , being not speaking of his own knowledge, would not fall within the meaning of "witness/complainant . Thus an attorney cannot legally, under such status of attorney, file the FIR or a criminal complaint. There is no concept / provision of initiating proceedings or recording evidence through attorney in the criminal law.
11. In the instant case there is no allegation that the appellant has forcibly occupied the property or dispossessed the complainant rather it is mentioned in complaint and evidence that complainant appointed the appellant/accused as caretaker and was authorized to occupy property by the owner. The matter requires proper interpretation of section 3 of the 2005 Act. Subsection (1) of section 3 states as follows: "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 owner or occupier of such property."
Before proceeding further, certain terms as defined in the 2005 Act may also be noted. Section 2(e) defines "Property" simply as meaning immovable property, while clauses (c) and (d) respectively of the same section define "occupier" as meaning the person who at the relevant time was in lawful possession of the property in question, and the "owner" as meaning the person who actually owned the property at the relevant time. Although section 3(1) is somewhat inartistically worded, in my view its ingredients or elements are as follows: a) The accused enters into or upon any property, b) Without having any lawful authority to do so, c) With intention of dispossession of, or grabbing, controlling, or occupying the property from, d) The owner or occupier of the property. In this regard, guidance has been sought from the Judgment of august Supreme Court which is reported as Muhammad Akram & 9 others Vs. Muhammad Yousaf & another, 2009 SCMR 1066.
Reliance is also placed on Muhammad Azeem and 3 others Vs. The State, 2023 MLD 823 [Sindh (Sukkur Bench)].
12. In the present case, complainant was neither owner nor occupier of the plot. It is trite law that all the ingredients or elements must be made out before it is established that the offence has been committed by the accused person. If even one of the ingredients or elements is missing, then no offence is made out. The august Supreme Court in its judgment, reported as Waqar Ali & others Vs. The State through Prosecutor/ Advocate General, Peshawar & others, PLD 2011 SC 181 enunciated that a complaint must disclose both the illegal act (actus reus) and criminal intent (mens rea) of the offence as enacted under section 3 of the 2005 Act, the relevant passage is reproduced herein below: "8. It is clear from section 3 ibid that in order to constitute an offense thereunder the complaint must disclose the existence of both, an unlawful act (actus reas) and criminal intent (mens rea).
In view of the allegations and circumstances considered above, it is apparent that even if it is ultimately established that the appellants are in occupation of an area owned by the respondent- complainant, there is no indication that they also had the necessary criminal intent...."
Moreover, the august Supreme Court in its landmark judgment which is reported as Mst. Gulshan Bibi and others Vs. Muhammad Sadiq and others, PLD 2016 SC 769 held that: "8. In view of the above discussion we conclude that 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."
13. It is an admitted position that the appellant entered the plot after being permitted to do so by the owner. In other words, the admitted position is that the appellant did have lawful authority to enter upon the property. It cannot be established that the appellant has committed an offence under Section 3 of the 2005 Act and the reason is that in such a situation essential ingredients or elements are not made out. This Court, in the following judgment, Muhammad Rafique and another Vs. Tasadaq Hussain and another, 2022 MLD 1232 [Islamabad] expressed the above the position of law, the relevant extract is reproduced herein below: "The essentials to constitute an act as an offence under the illegal dispossession Act, 2005, it is obligatory for the complainant to enjoy lawful ownership or possession at the time of alleged dispossession, at the hands of the accused through an unlawful course....Thus, the underline principle for deciding a complaint under the Act of 2005, the complainant has to prove that the land was in his possession and that he was illegally and without due course of law was dispossessed from the said land with specific reference to time and date."
Similarly, in another judgment, which is reported as Muhammad Hashim Islami Vs. The State, 2023 PCr.LJ 1338 [Sindh (Sukkur Bench)],the honourable Sindh High Court held that: "11...The learned trial Court has unreasonably relied upon the possession of the appellant over the subject land which is continued till the date of judgment....The crux of the illegal dispossession proceeding is not the possession of the accused person but the fact that how he has come into the possession of the property. If possession is not established to be taken by the accused persons by using force or deceiving the complainant then a case of illegal dispossession is surely not made out."
Reliance is also placed on Niaz Mohammad (Deceased) through LRs. Vs. timer Khayam and 2 others, 2022 PCr.LJ Note 14 [Sindh]
14. As far as preparation of forged documents regarding the ownership of the plot is concerned, a separate FIR has been registered against the appellant and he has been sent behind the bars. Now the matter is under trial in the Court of competent jurisdiction.
15. In view of above discussion, instant criminal appeal is allowed, impugned judgment dated 02.02.2023, passed by learned Additional Sessions Judge, West-Islamabad is hereby set aside and the appellant/accused is acquitted of the charge, his sentence is already suspended, his surety stands discharged.