2009 PLP 1252 (YLR)

NADEEM AZHAR SIDDIQUI, J.--This appeal is directed against the order dated 5-5-2006 passed by learned Addi tional Sessions Judge, Mirpurkhas, whereby respondents/accused were acquitted under section 265-K, Cr.P.C. for crime under sections 3(i),(ii), 4, 6 of Illegal Disposses sion Act, 2005 and under section 34, P.P.C. and impose compensation of Rs.50,000 to be paid by the complainants to all the opponents/ respondents. The facts of the case are that the complainant/appellants filed complaint against the respondents/accused stating therein that in between the period 1983 to this date all the accused Nos.1 to 35 occupied drain and passage facilities and working on un-authorized roads and building constructions on the inspection path of right bank of Digri minor by deploying heavy machinery and equipments. The respondents/accused are land grabbers and they have occupied land in collaboration of the then SDO Irrigation SIDA Digri Naeem Memon (opponent No.2) and said S.D.O's maternal uncle civil contractor Ghulam Hussain Memon (opponent No.3) have encroached upon control of the right side (bank) inspection path of the said Digri minor. The acts of the opponents/respondents have adversely affected villagers and concerned inhabitants of the surrounding. They prayed that this Court, be pleased to call the above named persons and proceed against them in accordance with law (Illegal Dispossession Act XI of 2005). During the pendency of the complaint, the respondents/accused filed application under section 265-K, Cr.P.C. read with section 9 of Illegal Dispossession Act, 2005, which was decided after hearing the learned counsel for the parties and passed impugned order as stated above. Being aggrieved of aforementioned acquittal order and imposition of compensation of Rs.50,000 to be paid by the complainants/appellants to all the respondents opponents, present appeal has been filed by complainants/appellants with a prayer that the order may be set aside. The learned counsel for the appellants submits that the order was passed in violation of principle of natural justice and the compensation was awarded without show-cause notice upon the appellants. He then submits that the trial court has committed illegality in deciding the complaint without recording evidence at the premature stage. He relied upon the following reported cases:

1. Samander Khan v. Haji Abdul Rehman (PLD 2007 Quetta 72).

2. Muhammad Banaras v. State (PLD 1992 Kar. 135).

3. Rehmatullah v. Mst. Zahida & another (2008 YLR 1044).

4. Rahim Tahir v. Ahmed Jan (PLD 2007 SC 423).

5. Azmat Bibi v. Asifa Riaz (PLD 2002 SC 687). Mr. Nandan A. Kella, advocate for respondents states that lands belong to government and. the respondents have executed the approved scheme of the government and have not committed any offence and the application under Illegal Dispossession Act was filed with mala fide intention and the respondents were rightly acquitted and payment of compensation was ordered. He then submits that earlier the appellants have filed civil suit and after failing in the suit have filed the application. Mr. Faiz Muhammad, Advocate for Respondents No.2 and 3 while adopting the arguments of Mr. Nandan A. Kella submits that the appellants are neither owner nor occupier of the land and can not file application. Mr. Mumtaz Alam Leghari, A.A.G. for the State supported the order on merits, but submits that order for payment of compensation without show-cause notice is not warranted under law. I have heard the learned counsel for the parties and perused the record available before me. The allegations against respondents are that they occupied the drain and passage facilities and working on the un-authorized roads and building construction on the inspection path of right bank of Digri minor by deploying heavy machinery and equipment. The respondents in this application under section 265-K. Cr.P.C. submit that the District Development Committee Mirpurkhas approved certain schemes; including construction of Road to village Ch: Muhammad Aslam and District Government Mirpurkhas accorded approval of execution of said schemes and after publication the tender was approved and awarded to respondent No.3. From perusal of complaint, it appears that the appellants have not disclosed their legal status in the land from which they were allegedly dispossessed or occupied by the respondents without lawful authority. The jurisdiction under Illegal Dispossession Act can only be invoked by owner or occupier of the property who was dispossessed without lawful authority. Apparently the respondents are executing the approved scheme of government and had neither occupied the land without lawful authority nor dispossessed the appellants from the land. The court is empowered to acquit the accused at any stage after hearing prosecution and accused, if it considers that there is no possibility of accused being convicted of any offence. Since neither the appellants are the owner or occupier of the land in question nor they were dispossessed nor the respondents are land grabber, the appellants cannot maintain the application under Illegal Dispossession Act. The trial court while acquitting the respondents has not committed any error and has rightly passed the order. However, as far as payment of compensation is concerned, there is no provision in the Illegal Dispossession Act for payment of compensation and the same appears to be imposed under section 250, Cr.P.C. as section 9 provides that unless otherwise provided the provision of Cr.P.C. shall apply to all proceeding under this Act. Section 250, Cr.P.C. empowers the Magistrate to award compensation to the accused for false and either frivolous or vexatious complaint against him. The powers under the section can be exercised after show-cause notice. From the order, it appears that no show-cause notice for payment of compensation has been issued by the trial court. In view of the above, the order of the trial court is set aside only to the extent of payment of compensation to the respondents. The case is remanded to the learned trial court to decide the compensation after proper show-cause notice and after hearing the appellants. The appeal is disposed of in the above terms. H.B.T./A-16/K Case remanded.