2008 PLP 2095 (YLR)

MUHAMMAD ALAM KHAN, J.

By way of this judgment, I propose to dispose of the instant criminal appeal and Criminal Revision No.18/2008 (suo motu notice) as the same arise out of one and the same judgment.

2. Anjum Jillani son of Malik Ghulam Jillani, resident of Gali Bagh Wali, Anjum House, outside Leghari Gate, D. I. Khan has filed the present appeal under section 410, Cr.P.C. challenging the judgment of the learned Sessions Judge, D. I. Khan in criminal complaint No. 5 of 2006 decided on 5-5-2007, vide which, the appellant was convicted under section 3(2) of the Illegal Dispossession Act, 2005 and was sentenced to one year imprisonment and fine of Rs.3000 out of which, Rs.2000 will be paid as compensation to Mst. Feroza Jillani under section 544-A., Cr.P.C. or in default of payment of fine, to suffer further three months simple imprisonment. The appellant was handed over to the Probation Officer for good conduct on furnishing bail bonds in the sum of Rs.1,00,000 with two sureties. Further directions were issued to the S.H.O. Police Station City D. I. Khan to hand over the possession of the disputed house to Mst. Feroza Jillani after vacating the same from the appellant as envisaged under the provisions of section 7 (3) of the Illegal Dispossession Act, 2005.

3. It was contended by the appellant that the learned Sessions Judge, had no jurisdiction to entertain the complaint under sections 3, 4 and 8 of the Illegal Dispossession Act, 2005 as the matter was with respect to the civil liability and amenable to the jurisdiction of the civil Court. It was also argued that the respondent Mst. Feroze Jillani had moved the Court of Senior Civil Judge, D. I. Khan in the capacity of a Guardian Judge under the provisions of Succession Act, 1925 for the issuance of succession certificate regarding the assets of Malik Ghulam Jillani deceased, husband of Mst. Feroza Jillani and father of the appellant. Thus, it was argued that on the strength of dictum rendered in the case of Zahoor Ahmad and 5 others. v. The State and 3 others PLD 2007 Lahore 231, according to which the provisions of the Act ibid were not applicable to the ordinary dispossession, the Court of the learned Sessions Judge, D. I. Khan had no inherent jurisdiction to pass the impugned order of conviction and restoration of possession to respondent No.1.

4. On the other hand, Mst. Feroza Jillani respondent No.1 present in person submitted that she is the widow of Malik Ghulam Jillani and mother of the appellant. Malik Ghulam Jillani had given a house measuring three Marlas known as Anjum House duly described through boundaries by deed dated 4-1-1997 on the eve of his marriage with respondent No.1 as dower. Besides the suit house, certain golden ornaments were also given by her deceased husband in dower. It was also argued that on the death of Malik Ghulam Jillani the appellant demolished the intervening wall between the two houses and forcibly took possession from respondent No.1 and thus, she is now living in the house of her parents situated in Mohallah Sheikhanwala, Tank, District Tank.

5. I have given my anxious consideration to the facts and circumstances of the case and have perused the record minutely.

6. Mst. Feroza Jillani appeared before the Court and narrated the version given in the application submitted to the learned Sessions Judge. In support of the stand taken by Mst. Feroza Jillani, Dr. Amanullah SMO, Tehsil Headquarter Hospital Tank appeared and the version of respondent No.1 finds corroboration from his statement. Furthermore, Dr. Sheik Ehsan appeared as P.W.3 while the statement of Ghulam Sarwar son of Sona was recorded as P.W.4. These witnesses have been subjected to a lengthy cross-examination but nothing has been squeezed out- from their mouth in order to shatter the version given by respondent No.1.

7. The appellant has recorded his statement under section 340(2), Cr.P.C. and has stated that he is the real son of Malik Ghulam Jillani and is in possession of the suit house since 1995 which comprises nine Marlas and admitted that he is the owner of seven Marlas and the remaining two Marlas were the ownership of Mst. Feroza Jillani and Mst. Saeeda Begum. It was further stated that after the death of Mst. Saeeda Begum, her share devolved upon her son and thus, Mst. Feroza Jillani was not the owner of the suit house. It was admitted that Mst. Feroza Jillani is her step mother and she, after the marriage, was living with his late father Malik Ghulam Jillani in the suit house and this was a separate unit which was occupied by respondent No.1. So, on the material available on the record it is abundantly proved that after the death of the house of respondent No.1, the relations between the appellant and her step mother became strained and thus, she was forcibly dispossessed from the suit house.

8. The contention of the appellant, that the provisions of the Illegal Dispossession Act, 2005 were not applicable to the facts and circumstances of the case, is without any substance as the provision of the Act ibid were not only applicable to the land grabbers and land Maphia but were also applicable to the forcible dispossession of a person from his lawful possession as held in the cases of Rahim Tahir. v. Ahmad Jan and 2 others PLD 2007 SC 423 and Mrs. Fakhrunnisa. v. The State 2007 MLD 1730 Karachi.

9. The learned trial Court has rightly convicted the appellant under section 3 of the Illegal Dispossession Act, 2005 and has rightly burdened him with a fine of Rs.3000. However, when it was abundantly proved on the record that the appellant, by taking the law into his own hand, has forcibly dispossessed a widow from the house, this was not a case in which mitigating circumstances should have been taken into consideration by the learned trial Court and he has illegally and without justification been released on prohibition which order is not in accordance with the well established principles of justice. The same is, therefore, set-aside.

10. As far as Criminal Revision No.18 of 2008 (suo-moto-notice) is concerned, as no case has been made out for enhancement of the sentence awarded to the convict, the same stands dismissed.

11. In view of the facts and circumstances of the case narrated above, Criminal Appeal No.29/2007 is dismissed as meritless. However, the order giving concession to the appellant to be released on probation is withdrawn. The appellant is present in Court and is taken into custody. He be sent to Central Prison, D. I. Khan to serve the remaining sentence recorded by the learned Sessions Judge, D. I. Khan vide impugned judgment S.H.O., Police Station Cantt: D. I. Khan is directed to hand over the possession of the suit house of Mst. Feroza Jillani widow of Malik Ghulam Jillani, resident of Gali Bagh Wali outside Leghari Gate, D. I. Khan city Anjuml House at present Mohallah Sheikhanwala, Tank city. H.B.T./76/P Appeal dismissed.