P L D 2007 Lahore 231 (PLP)

ASIF SAEED KHAN KHOSA, J.

On the authority of Lord Reid in the case of Haughton v. Smith [1975 A.C. 476, 500] it is said that the law may sometimes be an ass but it cannot be so asinine as that. The Hon'ble Supreme Court of Pakistan had observed in the case of Rashad Ehsan and others v. Bashir Ahmad and another [PLD 1989 SC 146] that "The law sometimes is called an ass but the Judge should, as far as it is possible, try not to become one". Similarly in the case of Mst. Aziz Begum v. Federation of Pakistan and others [PLD 1990 SC 899] the Hon'ble Supreme Court. of Pakistan had reiterated the principle" that the "law may be blind but the Judge is not". The case in hand is not strictly about asininity or blindness of any law but it surely concerns an asinine and blindfolded application of a law, i.e. the Illegal Dispossession Act, 2005 (Federal Act XI of 2005).

2. Illegal dispossession from property is not uncommon or unusual but what is most rare and infrequent is a mistaken or misguided dispossession of some existing laws by a new law from a field that stands legitimately occupied by the existing laws. Interestingly the case in hand throws up exactly such an odd, curious and bizarre situation and clamours for an appropriate .clarification by this Court.

3. Disputes between individuals over title to or possession of immovable property and illegal or forcible dispossession of a rightful owner or occupier from some property possessed by him are not unusual or extraordinary phenomena but unfortunately of late a new phenomenon has emerged in our society wherein a class' of persons called "property grabbers", also commonly known in local parlance as "Qabza Groups" or "land mafia", has come to surface whose primary chore or errand is to illegally or forcibly take possession of immovable properties belonging to others. The sole aim of this class of persons is undue enrichment at the cost of others' rights and the tool employed by them for achieving such nefarious end, more often than not, is nothing but brute force. In cases of run of the mill dispossession of one person from some immovable property by another the law of the land already provides many remedies in both civil and criminal spheres, including a regular civil suit under the Code of Civil Procedure, 1908, a civil suit with summary procedure under section 9 of the Specific Relief Act, 1877, proceedings under section 145 of the Code of Criminal Procedure, 1898, criminal prosecution for offences relating to property, trespass and violence contained in the Pakistan Penal Code, 1860 and proceedings before, the revenue courts and authorities under the Land Revenue Act, 1967, etc. However, faced with the new challenge posed by the menace of property grabbers/Qabza Groups/land mafia the Parliament rose to the occasion and in the year 2005 the Illegal Dispossession Act, 2005 was passed and enacted in order to provide a speedy and effective remedy and relief to the innocent people deprived of possession of immovable properties by property grabbers/Qabza Groups/land mafia. For facility of reference the text of the Illegal Dispossession Act, 2005 is reproduced here in full (as published in PLD 2005 Federal Statutes 202): ACT XI OF 2005 ILLEGAL DISPOSSESSION ACT, 2005 An Act to curb the activities of the property grabbers [Gazette of Pakistan, Extraordinary, Part I, 7th July, 2005] The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on 30th June, 2005, is hereby published for general information: Whereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers; It is hereby enacted as follows:-

1. Short title, extent and commencement.

(1) This Act may be called the Illegal Dispossession Act, 2005. (2) It extends to the whole of Pakistan. (3) It shall come into force at once.

2. Definitions.--In this Act, unless there is anything repugnant in the subject or context, (a) "Court" means the Court of Session; (b) "Code" means the Code of Criminal Procedure, 1898 (Act V of 1898); (c) "occupier" means the person who is in lawful possession of a property; (d) "owner" means the person who actually owns the property at the time of his dispossession, otherwise than through a process of law; and (e) "property" means immovable property.

3. Prevention of illegal possession of property, etc.

(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.

4. Cognizance of offence.

(1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on a complaint. (2) The offence under this Act shall be non-cognizable. (3) The Court at any stage of the proceedings may direct the police to arrest the accused.

5. Investigation and procedure.--(1) Upon a complaint the Court may direct the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court: Provided the Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this subsection. On taking cognizance of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay, sufficient reasons shall be recorded. The Court shall not adjourn the trial for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall in any ease be granted for more than seven days.

6. Power to attach property.--(1) If the Court is satisfied that none of the persons are in possession immediately before the commission of the offence, the Court may attach the property until final decision of the case. (2) In case of attachment, the methods of its management, safeguard against natural decay or deterioration shall be determined by the Court.

7. Eviction and mode of recovery as an interim relief.

(1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession. (2) Where the person against whom any such order is passed under subsection (1) fails to comply with the same, the Court shall, notwithstanding any other law for the time being in force, take such steps and pass such order as may be necessary to put the owner or occupier in possession. (3) The Court may authorize any official or officer to take possession for securing compliance with its orders under subsection (1), The person so authorized may use or cause to be used such force as may be necessary. (4) If any person, authorized by the Court, under subsection (3), requires police assistance in the exercise of his power under this Act, he may send a requisition to the officer-in-charge of a police station who shall on such requisition render such assistance as may be required. (5) The failure of the officer-in-charge of police station to render assistance under subsection (4) shall amount to misconduct for which the Court may direct departmental action against him.

8. Delivery of possession of property to owner, etc.

(1) On conclusion of trial, if the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the Court may, at the time of passing order under subsection (2) of that section, direct the accused or any person claiming through him for restoration of the possession of the property to the owner or, as the case may be, the occupier, if not already restored to him under section 7. (2) For the purpose of subsection (1), the Court may, where it is required, direct the officer-in-charge of the police station for such assistance as may he required for restoration of the possession of the property to the owner or, as the case may be, the occupier.

9. Application of Code.

Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall apply to proceedings under this Act.

4. After enactment of the Illegal Dispossession Act, 2005 we have noticed that although this Act was restricted in its scope and applicability to illegal dispossession from immovable properties only by a particular class of persons who could qualify as property grabbers/Qabza Groups/land mania yet the said Act is now being invoked and utilized by all kinds of aggrieved persons in all kinds of cases of dispossession from immovable properties even by individuals who have no credentials or antecedents of being property grabbers or being members of a Qabza Group or land mania. Such abuse and wrong utilization of the Illegal Dispossession Act, 2005 has been found by us to be completely nugatory to its contents as well as objectives. It has appeared to us that through a mistaken or deliberate misuse of the Illegal Dispossession Act, 2005 the legal remedies already occupying the field against run of the mill and ordinary dispossession from immovable properties have been dispossessed of the field and that surely was not the intent or spirit of the Illegal Dispossession Act, 2005.

5. The Short Title of the Illegal Dispossession Act, 2005 itself makes it quite clear that the said Act is "An Act to curb the activities of the property grabbers" and the Preamble to the said Act further clarifies this position by proclaiming in no uncertain terms that "Whereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers" (italics have been supplied by us for emphasis). Although the term "property grabbers" has not been defined in the Illegal Dispossession Act, 2005 yet the intention of the legislature in this respect is quite evident from the Working Paper prepared by the Federal-Ministry of Law, Justice and Human Rights and submitted before the Parliament with the draft or the proposed legislation as well as from the parliamentary debates on the proposed legislation. Both such sources are generally recognized as valid and useful sources which may be utilized by a Court of law for the purpose of interpreting a piece of legislation by appreciating the spirit in which it was introduced, passed and enacted and for understanding the mischief which was sought to be suppressed. A reference in this respect may be made to the judgment delivered by the Hon'ble Supreme Court of Pakistan in the case of Miss Benazir Bhutto v. Federation of Pakistan and another [PLD 1988 SC 416]. Upon a direction issued by us in that regard Dr. Danishwar Malik, Deputy Attorney-General for Pakistan has procured and produced before us copies of the Working Paper prepared by the Federal Ministry of Law, Justice and Human Rights, Report of the Standing Committee on Law, Justice and Human Rights and Official Reports pertaining to the debates in the National Assembly and the Senate concerning the Illegal Dispossession Bill, 2005. We have gone through the said documents with care and interest and have found that the opening words of the Working Paper (captioned as `Brief on Illegal Dispossession Bill') prepared by the Federal Ministry of Law, Justice and Human Rights and submitted before the Parliament with the draft of the proposed legislation were that "The object of the proposed Bill is to provide deterrent punishment to the land grabbers and Qabza Group and to provide speedy justice and effective and adequate relief to the victims dispossessed of immovable property by unlawful means, as explained below

". It was further observed in the Working Paper that "The above measures would go a long way in reducing the rate of crime of illegal dispossession in particular from the weaker segment of the society and many cases of land dispossession giving rise to lengthy civil litigation and serious crimes including murders could be avoided." The reference therein to "the weaker segment of the society" and to "serious crimes including murders" manifestly demonstrated that the mischief to be suppressed by the proposed legislation was the serious threat posed by the powerful, dangerous and organized land mafia/Qabza Groups to the lives and properties of innocent citizens. The words "many eases of land dispossession could be avoided" and "reducing the rate of crime of illegal dispossession" further showed that the proposed legislation was not intended to eater for all kinds of dispossession from immovable property by all kinds of persons but its scope was limited to some particular class of cases of illegal dispossession from immovable property. It was held by the Hon'ble Supreme Court of Pakistan in the case of Mughal Surgical (Pvt.) Ltd. v. Presiding Officer, Punjab Labour Court No. 7 and others [2006 SCMR 590] that a law has "to be interpreted and applied in the spirit which had led to the enactment of the said law". The Report of the Standing Committee on Law, Justice and Human Rights and the Official Report pertaining to the debate in the National Assembly show that the expression "property grabbers" used in the Bill was accepted by the members of the National Assembly without a debate to mean and be synonymous with Qabza Groups. The Official Report pertaining to the debate in the Senate, however, clearly demonstrates that the expression "property grabbers" used in the Bill was expressly understood and accepted by the members of the Senate to denote and stand for "Qabza Mafia". All this leaves no doubt in our minds that the Illegal Dispossession Act, 2005 is restricted in its scope and applicability to only those cases where a dispossession from immovable property has allegedly come about through the hands of a class or group of persons who have the credentials or antecedents of being property grabbers/Qabza Group/land mafia and the said Act does not apply to run of the mill cases of alleged dispossession from immovable properties by ordinary persons having no such credentials or antecedents, i.e. cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an on-going private dispute over the relevant property. It is, thus, imperative that before entertaining a complaint under the Illegal Dispossession Act, 2005 a Court of Session must feel prima facie satisfied that the persons complained against have the credentials of being property grabbers or they have the antecedents of being members of a Qabza Group or land mafia and it is only after such prima facie satisfaction that the complaint may be entertained by it. For the purpose of such prima facie satisfaction there must exist some material showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or at the very least the complaint must demonstrate an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful or justifiable claim. The language of the Short Title and of the Preamble to the Illegal Dispossession Act, 2005 and the Working Paper and the parliament', debates clearly show that a person has to be a property grabber or a member of a Qabza Group or land mafia before he can be proceeded against under the said Act. In the case of an individual it must be the manner of execution of .his design which may expose him as a property grabber and in the case of a Qabza Group or land mafia it is not the present allegation which should try to portray, depict or establish him as a property grabber but he roust already be a known, acknowledged or established property grabber. It is pertinent to mention here that the learned counsel for the petitioners, the learned counsel for respondents Nos. 2 and 3 and all the learned law officers appearing before us on behalf of the Federation as well as the Province of' the Punjab have also expressly agreed and concurred before us that the expression "property grabbers" used in the Illegal Dispossession Act, 2005 stands for Qabza Groups and land mafia and for individuals who without any lawful or justifiable claim to an immovable property grab the same by force or deceitful means through an organized and calculated methodology or stratagem and also that the provisions of the Illegal Dispossession Act, 2005 do not apply to run of the mill and common place dispossession from immovable properties by ordinary persons having no such credentials or antecedents or employing no such organized and calculated strategy or using no force or deceit.

6. In the case in hand the petitioners have called in question the judgment dated 29-9-2006 handed down by the learned Additional Sessions Judge, Gujranwala convicting and sentencing the petitioners in connection with a complaint filed by respondents Nos. 2 and 3 against the petitioners for an offence under section 3 of the Illegal Dispossession Act, 2005. The learned counsel for respondents Nos. 2 and 3 has utterly failed to show as to how the isolated allegation levelled by the said respondents against the petitioners regarding illegal dispossession from immovable property was sufficient to brand the petitioners as property grabbers or as members of' a Qabza Group or land mafia so as to attract the provisions of the Illegal Dispossession Act, 2005. The parties to this case are very closely' related to each other and the dispute between them was purely a private dispute over possession of some part of the family property. Petitioner No. 1 and respondents Nos. 2 and 3 are real brothers and petitioners Nos. 2 and 3 are real sons of petitioner No. 1 and nephews of respondents Nos. 2 and

3. The said parties are co-sharers in the relevant parcel of land and their dispute over possession of the same was already sub judice before a civil Court since before filing of the complaint under section 3 of the Illegal Dispossession Act, 2005 by respondents Nos. 2 and

3. It appears that respondents Nos. 2 and 3 had resorted to filing a complaint under the Illegal Dispossession Act, 2005 against the petitioners only to circumvent the normal civil proceedings pending in the matter and to bring the weight of criminal law to bear upon the petitioners so as to short-circuit the issue. We may observe here that proceedings under the Illegal Dispossession Act, 2005 are by and large akin to proceedings under section 145, Cr.P.C. and it is settled law that a criminal Court is not to interfere in the matter of possession of a property where such matter is already being regulated by an order of a civil Court. A reference in this respect may be made to the cases of Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470, Imamdad Khan and 7 others v. Syed Muhammad Ilyas and 2 others 1971 SCMR 581, Shah Muhammad v. The State and 5 others 1983 SCMR 1173, Mehr Muhammad Samar and others v. The State and others PLD 1985 SC 240, Muhammad Armen v. Master Bashir Ahmed and others 2006 SCMR 969 and Muhammad Sadiq v. Muhammad Rafiq and others 2006 SCMR 1470. We are, thus, sanguine that the impugned proceedings under the Illegal Dispossession Act, 2005 undertaken by the learned Additional Sessions Judge, Gujranwala against the petitioners at the instance of respondents Nos. 2 and 3 and culminating in the petitioners' convictions and sentences recorded by the learned Additional Sessions Judge, Gujranwala on 29-9-2006 for an offence under section 3 of the Illegal Dispossession Act, 2005 were comm non judice and non est and the same are, therefore, declared to be without lawful authority and of no legal effect. In view of this declaration made by us there is hardly ally occasion left for adjudicating upon the merits of the impugned judgment dated 29-9-2006 rendered by the learned Additional Sessions Judge, Gujranwala. As a sequel to the above mentioned declaration this writ petition is allowed with no order as to costs, the impugned judgment passed by the learned Additional Sessions Judge, Gujranwala on 29-9-2006 is set aside and the convictions and sentences of the petitioners recorded through the said judgment are declared to be a nullity. The sentences passed by the learned Additional Sessions Judge, Gujranwala against the petitioners have already been suspended and the petitioners have already been admitted to bail by us during the pendency of this writ petition vide order dated 1-12-2006. The petitioners' bail bonds and sureties shall stand discharged.

7. For the purpose of providing guidance to all the Courts of Session in the Province of the Punjab we declare as follows: (i) The Illegal Dispossession Act, 2005 applies to dispossession from immovable property only by property grabbers/Qabza Group/land mafia. A complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit properly to which they have no lawful, ostensible or justifiable claim. In the case of an individual it must be the manner of execution of his design which may expose him as a property grabber. (ii) The Illegal Dispossession Act, 2005 does not apply to run of the mill cases of alleged dispossession from. immovable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Group/land mafia, i.e. cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an on-going private dispute over the relevant property. A complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being regulated by a civil or revenue Court. All the Courts of Session in the Province of the Punjab are directed to examine all the complaints under the Illegal Dispossession Act, 2005 pending before them and to dismiss all those complaints forthwith which are found to be not maintainable in terms of the interpretation of the said law rendered by us through the present judgment.

8. Before parting with this judgment we may observe that we have not found the Illegal Dispossession Act, 2005 to be the finest example of legislative draftsmanship. To start with, there is no provision in the said Act conferring any right of appeal even against a final judgment of conviction and sentence! The said Act is a penal statute and in an appropriate case a person found guilty of an offence under the said law can be sentenced to a term of imprisonment and fine, etc. Absence of a right of appeal in such a case appears to us to be extremely unjust and oppressive. In the case of Pakistan through Ministry of Defence v. The General Public [PLD 1989 SC 6] a right of appeal against one's conviction on a criminal charge was recognized by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan as an Islamic right and the same was extended even to convictions recorded by Court Martial. Through the said judgment the relevant provisions of the Army Act, 1952, the Pakistan Navy Ordinance, 1961 and the Pakistan Air Force Act, 1953 which debarred persons sentenced by Court Martial from preferring appeals against decisions rendered against them were declared to be repugnant to the Injunctions of Islam. Because of the said judgment the relevant statutes were subsequently amended and a right of appeal had been provided against the decisions of Court Martial. Apart from that the Illegal Dispossession Act, 2005 does not contain any provision for any challenge even against any interim order passed by a trial Court. Some of the interim orders. That can be passed by a trial Court under the said law are quite drastic, like those under sections 6 and 7 of that Act, and absence of an immediate remedy against them has again appeared to us to be unfair and repressive. A recourse to writ jurisdiction of this Court under Article 199 of the Constitution in such matters may not be an adequate remedy in such respects due to the limited scope of the writ jurisdiction of this Court. Besides that, section 5 of the Illegal Dispossession Act, 2005 contemplates investigation into the matter by the local police but the same does not provide for any involvement of the relevant revenue authorities in such matters. Our experience shows that in most of the eases under the said Act it is the revenue authorities which appear to be more relevant than the police authorities and, thus, there is a pressing need to allow the trial Courts to seek reports from or involve the relevant revenue authorities in the matter if a need is felt by them in that regard. It goes without saying that the police are ill-equipped to assist the trial Courts in matters pertaining to title of the parties to the relevant property or its extent or in matters of actual boundaries of properties or their demarcation. The stage at which a trial Court may exercise its powers under section 7 of the Illegal Dispossession Act, 2005 is also not clear or readily discernible, especially when the interim relief permissible at an interlocutory stage may amount to the final and ultimate relief prayed for. We, therefore, deem it appropriate to make a recommendation to the Secretary, Federal Ministry of Law, Justice and Human Rights to attend to the above mentioned aspects of the Illegal Dispossession Act, 2005 and to suggest to the relevant quarters appropriate amendments in the said law. We may also observe that through our private research we have found that in the State of Andhra Pradesh in India there is a law called the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (Act XII of 1982) which deals with the issue somewhat identical to that dealt with by our Illegal Dispossession Act, 2005, We have found the said Andhra Pradesh law to be a comprehensive and exhaustive piece of legislation on the subject whereas the Illegal Dispossession Act, 2005 leaves much to be desired. We would, therefore, like to suggest to the Federal Ministry of Law, Justice and Human Rights to examine the said Andhra Pradesh law and to suitably mould or recast the Illegal Dispossession Act, 2005 on the same pattern, if so advised. The Office of this Court is directed to send a copy of this judgment to the Secretary, Federal Ministry of Law, Justice and Human Rights for his information. M.B.A./Z-1/L Petition allowed.