SARDAR MUHAMMAD SARFRAZ DOGAR, J. This judgment shall dispose of captioned criminal appeal as well as writ petition. For convenience, Tariq Ali shall be here-in-after referred as "complainant" whereas Muhammad Ibrahim, etc., shall be hereinafter referred as "Appellants".
2. The appellants Muhammad Ibrahim, Arshad Ali, Riasat Ali, Kashif Ali and Asif, Mehmood impugns conviction and sentence inflicted upon them vide judgment dated 08.02.2012 rendered by the learned Additional Sessions Judge Ferozewala, in private complaint filed under sections 3 and 4 of the Illegal Dispossession Act, 2005 whereby; they were convicted and sentenced as under:- "Rigorous, imprisonment for two years with fine of Rs.10,000/- each and in case of, non-payment, to further undergo one month simple imprisonment. The complainant was also held entitled to get compensation under section 544-A, Cr.P.C. of Rs.10,000/- from each accused, to be recovered from them as arrears of land revenue."
3. Brief facts of the case are that on 03.08.2010 at about 11:00 a.m., appellants while armed with deadly weapons along with 20-unknown accomplices trespassed into the land measuring 15- Kanal bearing Khewat No. 56, Sq.No.53, Khasra No.2/1 and Khasra No.9 situated at Mouza Lahorian Wala, which was in possession of the complainant for the last many years. The appellants took over the possession of the same forcibly and illegally by ploughing the same with tractor.
4. After recording cursory evidence, learned trial court directed the SHO concerned to conduct necessary investigation and submit report which was submitted accordingly. Learned trial court summoned the appellants in the light of cursory evidence as well as report of local police, who appeared before the learned trial court and were charge sheeted under section 3 of the Illegal Dispossession Act, 2005, to which appellants pleaded not guilty and claimed trial.
5. The complainant himself appeared as PW.1 whereas produced Muhammad Jameel Patwari as PW.2 and Muhammad Arif as PW.3. The complainant also produced affidavit Ex.P.A, a photo copy of Khasra Girdawari Ex.P.B, copy of Khasra Girdari Rabi 2010 Ex.P.C, attested copy of plaint titled as "Muhammad Tariq Ali etc., v. Naseem Akhtar, etc." Ex.P.D, copy of interim order dated 29.10.2004 Ex.P.E, copy of agreement dated 08.09.2004 Ex.P.F, copy of FIR No.420/2010 registered under sections 440, 148, 149, P.P.C. with the Police Station Narang Ex.P.G., Khasra Girdawari Khareef 2005 to Khareef 2010 Ex.P.H and copy of Aks Shajra Parcha Ex.P.J
6. After completion of evidence, statements of the appellants under section 342, Cr.P.C. were recorded. They produced Faryad Ali as DW.1 and produced Khasra Girdawari Khareef 2005 Ex.D.A and Fard Jamabandi for the year 2001-02 as Ex.D.B. However, they did not opt to appear as their own witnesses on oath.
7. Upon the conclusion of trial the learned trial court found the case against the appellants to have been proved beyond reasonable doubt and, thus, they were convicted and sentenced as mentioned and detailed above. Hence, the present appeal before this Court. On the other hand, the complainant invoked the constitutional jurisdiction of this Court seeking enhancement of the conviction and sentence.
8. Learned counsel for the appellants, in support of appeal contends that appellants are not land grabbers and have no previous history of such incidents as has been alleged by the complainant; that civil litigation is already pending adjudication between the parties and by passing the impugned judgment, the learned trial court has committed severe illegality and overlooked the precedents of the august Supreme Court of Pakistan rendered in a number of cases; that learned trial court has misread the evidence of PW.2 circle Patwari who admitted the joint ownership of appellants in his statement as per the Fard Jamabandi for the year 2001-02 Ex.D.B of the disputed land; that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt; thus, the appeal be accepted and the appellants may be acquitted of the charge.
9. On the other hand, learned law officers supported the judgment and prayed for dismissal of appeal and acceptance of writ petition for enhancement of conviction and sentence.
10. Heard. Record perused.
11. It has now been settled by the Hon'ble Supreme Court of Pakistan in judgment titled "Waqar Ali and others v. The State through Prosecutor/Advocate-General, Peshawar and others" (PLD 2011 Supreme Court 181) that the complainant is duty bound to state facts which, without extraneous considerations or evidence, satisfy the Court of the existence of every ingredient of alleged offence and without such, a complainant is not entitled to invoke aid of the Court and to foist travails of criminal trial on person accused by him. In the case in hand, which is in pipeline of criminal administration of justice since 2012, certain facts of immense importance are admitted. It is admitted fact that the alleged occurrence has been stated to be committed on 03.08.2010 at about 11:00 a.m and admittedly, the complainant has himself filed suit for specific performance regarding the suit property on 29.10.2004 whereas the Illegal Dispossession Act, 2005 was promulgated in the year 2005, therefore, the dispute in respect -of land was already pending adjudication before promulgation of Illegal Dispossession Act, 2005. Admittedly, Ex.P.B i.e. certified copy of Khasra Girdawari does not bear signatures of circle Patwari (PW.2). It is also an admitted position that the appellants are co-sharers in the Khata and mutation in this regard is also available on file. This fact of co-ownership and being co-sharers has also been admitted by the complainant's own witness PW.2 i.e. Muhammad Jameel, Circle Patwari, during his cross- examination. The relevant portion of his cross-examination is hereby reproduced for ready reference:- "...Khasra Girdawari for Khareef 2005 Ex.D.A pertaining to the disputed land is in my handwriting and bears my signature. It is correct that according to Ex.D.A, Muhammad Ibrahim has been shown in column of cultivator. Volunteers one Allah Bukhsh son of Makhan has been shown as tenant of Ibrahim in the said column. Ex.D.B Fard Jabanbandi for the year 2001-02 pertaining, to the disputed land is in my handwriting and bears my signature. It is correct that accused Ibrahim etc. have been shown as owners of the disputed land in Ex.D.B and they are joint owners in same Khewat. It is correct that complainant Tariq Ali is neither owner nor cultivator of any land adjacent to the disputed land..."
(Emphasis added)
In view of above admission of the circle Patwari, it is on record that appellants are also co-sharers of the land. It is well settled proposition of law that co-sharer is presumed to be in possession of each and every inch of joint property. Therefore, applicability of the Illegal Dispossession Act, 2005 in this case required extra-ordinary circumstances, which are very much lacking herein.
12. The learned trial court has laid much emphasis on the report of local police, however, perusal of same reveals that it is only constrained to the extent of duration of possession of complainant over 6 Acre of land. The rest of the portion of the report discloses the registration of case FIR No.420/2010 dated 1I.08.2010, registered for the offences under sections 440, 148, 149, P.P.C. with the Police Station Narang against Ibrahim, etc. The relevant portion of the same is hereby reproduced in verbatim for ready reference:- Therefore, the report of police remained ambiguous and does not disclose the mode and manner as well as particulars of occurrence as has been alleged by the complainant in his complaint.
Hence, the conviction could not be passed against the appellants on the basis of such weak type of evidence. Most particularly when the reporting officer i.e. SHO has not been produced in the court to substantiate the authenticity of the contents of the same.
13. There is nothing on record which could establish any link of the appellants with land grabbers or Qabza Mafia. The honourable Supreme Court of Pakistan in the above referred case law i.e. "Habibullah v. Abdul Manan" (2012 SCMR 1533) has also held that:- "In view of the above case-law referred above, if 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."
13(sic). Further, during the course of arguments, it is admitted by the complainant that at present, possession of the disputed land is with him and after decreeing of civil suit in his favour appellants preferred Civil Revision No. 39157 of 2019 which is pending adjudication before this Court. Therefore, at this moment, it is worth to add here that scope of Illegal Dispossession Act, 2005 is very limited and cases of forcible dispossession by land mafia or the habitual land grabbers come/fall within such category. The dispute, prima facie, appears to be between co-sharers/co-owners. The position, being so, brings the case of the appellants out of the purview of Section 3 the Illegal Dispossession Act. I am supported in such a view with the case of "Habibullah v. Abdul Manan"
(2012 SCMR 1533) wherein it is held that:- '8. Complainant while appearing as P.W.1 has not stated a single word that the appellants belong to a Qabza Group and were involved in such activities, so it is the complainant side who has failed to establish that the appellants belong to Qabza Group or they were land, grabbers. The complainant side has not produced any evidence oral or documentary to establish that the appellants had the credentials or antecedents of being property grabbers. So, it was a dispute between two individuals over immovable property and as per allegation the appellants have taken illegal possession of the property, being rightful owners, from the tenant who has taken the property on rent and committed the default in payment of rent and electricity bills inasmuch as the appellants do not belong to a class of property grabbers or Qabza Group and no case was made out under Section 3 of Illegal Dispossession Act."
15. It is also noted with grave concern that right of an individual/citizen is to be dealt with in accordance with law guaranteed under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Under Article 10-A further right to fair trial has been guaranteed. It is commonly known to everybody that to level an allegation against a person is easy but to rebut the same is a very difficult task. No-doubt, whenever an individual is aggrieved of an act or omission which constitutes an offence by another person, he has the right to get penalized the same in accordance with the relevant provisions provided under the relevant laws but at the same time everybody has the right to be provided a safeguard against his false implication under any such charges with mala fides. Illegal Dispossession Act, 2005, if seen, was enacted with the object to protect the lawful owners and occupiers of the immoveable properties from their illegal and forcible dispossessions by the property grabbers etc. but unfortunately these provisions are being utilized by certain people with mala fides to achieve their ulterior motives to convert the civil litigation into criminal one. It is thus, as mentioned above, guaranteed under Article 4 read with Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 that every person/individual/citizen be not only dealt with in accordance with law and no action detrimental to the life, liberty, body, reputation or property of any person shall be initiated except in accordance with law as well as he be provided fair trial. The heavy responsibility thus lies on Courts at any stage of the trial to protect the innocent people from their involvement in any such type of litigation either civil or criminal. It is commonly known that due to so many extraneous reasons a very minor litigation either civil or criminal lingers on years and years and innocent people suffer without their being any fault on their part. It has now been settled by the Hon'ble Apex Court of the Country that Court should protect innocent people from unlawful and unjustified involvement in such like cases/litigations. In this respect reliance can be placed on case law titled "Waqar Ali and others v.
The State through Prosecutor/Advocate-General, Peshawar and others" (PLD 2011 Supreme Court 181), in which Hon'ble Supreme Court of Pakistan at page 191 in Para 13 observed as under:- "Courts which have been authorized to try cases under the Act thus have a responsibility to see that the persons named in the complaint have a case to answer before they are summoned to face trial. This course, unfortunately has not been followed in the present case. As a result the appellants unnecessarily, have had to face trouble, expense and disruption in their lives. In this process the time and scarce resources of the Court have also been wasted and its docket burdened without cause. It may be clarified that the Court may, in the first instance, issue a notice (rather than summons) to the accused person if it requires clarification or in order to ensure that cognizance is justified. "
16. In view of above discussion, captioned appeal is allowed and appellants are acquitted of the charge. They are present on bail. Their sureties shall discharged from its liability. Consequently, captioned writ petition filed by the complainant for enhancement of sentence shall stand dismissed. It is however, made clear that this order shall not prejudice any civil proceeding pending before this Court or any other court of competent jurisdiction.