2022 PLP 100 (YLRN)

ABDUL HAMEED BALOCH, J.

This criminal acquittal appeal has been directed against the order dated 3rd December, 2019 (impugned judgment), passed by learned Additional Sessions Judge-I, Sibi (trial court), whereby the respondents Nos. 1 to 3 were acquitted of the charge under Section 265-K, Cr.P.C. in complaint under Sections 3, 4 of the Illegal Dispossession Act, 2005.

2. Succinct facts of the case are that on 1st November, 2017 the petitioner Muhammad Yar filed a complaint under Sections 3, 4 of the Illegal Dispossession Act, 2005 (Act 2005), against the respondents Nos. 1 to 5 before the court of Additional Sessions Judge-I, Sibi, who sent the same to SHO Bhag for inquiry with direction to investigate the matter and submit its report, who submitted its report on 15th November, 2017. The learned trial court vide order dated 5th January, 2018 dismissed the complaint being not maintainable as the dispute of ownership of the land in question was yet to be decided. The said order was assailed in Criminal Revision Petition No.(S) 3 of 2018, which was allowed and matter was remanded to the trial court vide order dated 28th February, 2018 for a decision on merit. After remand the respondents Nos. 3 and 6 filed an application, but the same was rejected by the trial court vide order dated 22nd June, 2018. The order was assailed in Criminal Revision Petition No. (S) 25 of 2018, which was allowed by this court vide order dated 22nd May, 2019 and matter was remanded to the trial court. After remand respondents Nos. 1 to 3 moved an application under Section 265-K, Cr.P.C. for their acquittal, which was allowed vide order dated 3rd December, 2019 and respondents Nos. 1 to 3 were acquitted of the charge, while to the extent of respondents Nos. 4 and 5 the case file was kept in dormant till their arrest, hence this acquittal appeal.

3. The learned counsel for the appellant contended that the property in question is settled property. The respondents have illegally taken possession of the property in question on 12th October, 2017. There is no bar in law for invoking criminal and civil jurisdiction simultaneously. Reliance was placed on the case of Sharmila Farooqui v. The State 2009 MLD Karachi 850 and Jam Suhnal v. Muhammad Aqil PLD 2012 Sindh 399.

4. Heard learned counsel for the appellant and perused the record. It appears that the appellant filed complaint under Section 3 of Illegal Dispossession Act, 2005, and on direction of the court SHO Police Station Bhag submitted report. The perusal of record reveals that respondent No. 1 being aggrieved of the order of Deputy Commissioner/ Collector Kachhi dated 11th July, 2011 filed appeal before Land Commissioner Naseerabad Division at Dera Murad Jamali, which was accepted on 17th July 2013 and the order of the Deputy Commissioner/ Collector Kachhi was set aside. The appellant being aggrieved of the same filed revision under Section 164 Land Revenue Act before Member-II, Board of Revenue Balochistan, Quetta, which was dismissed on 18th October, 2017. The relevant portion is reproduced for ready reference: "In the light of above discussion, I have come to the conclusion that the notification No. 301-8/ 77 - Revenue - 729 - 48 dated 18.02.1977 is applicable only for Bazgar Moroosi "occupancy tenant" but not for Bazgar Lathband. The learned Commissioner Nasirabad has rightly cancelled to the extent of mutation No. 60 dated 11.07.2011 passed by Collector/ Deputy Commissioner Kachi. However, mutation No. 34 dated 11-03-1989 is Wirasat Mutation inherited mutation has rightly been affected in the name of Muhammad Yar son of Dinar Khan stands intact. The revision petition is dismissed accordingly."

5. Record transpires that the complaint was initially dismissed on 24th November, 2017 by Additional Sessions Judge-I, Sibi. Being aggrieved of the same the complainant filed criminal revision petition before this Court bearing Criminal Revision Petition No. (S) 47 of 2017, which was accepted vide order dated lst January, 2018 and case was remanded to the learned trial court with direction to pass order after framing charge on merit.

6. It depicts from the record that respondent No. 3 (Abdul Sattar) being aggrieved of the order dated 22nd June 2018 of learned Additional Sessions Judge-I, Sibi filed Criminal Revision Petition No. (S) 25 of 2018 before this court and this court vide order dated 22nd May, 2019 partly allowed the petition and matter was remanded to the trial court for proceeding in accordance with law.

7. The Illegal Dispossession Act, 2005 was promulgated to protect the right of owner and lawful occupant of property against forceful and illegal dispossession of the owner of the property. Where a person is in possession of property legally the same would not fall within the ambit of Act 2005. The concept of the Act 2005 is to discourage illegal dispossession, protect lawful owner and occupier. It would be relevant to reproduce Sections 2(c) and 2(d) of the Act, 2005: "2(c): "Occupier" means the person who is in lawful possession of a property; 2(d) "Owner" means the person actually owns the property at the tie of his dispossession, otherwise than through a process of law,"

8. The Act 2005 categorically forbids the person to dispossess the rightful owner from the property without due process of law. It would be appropriate to reproduce Section 3 of the Act 2005: "Section

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 owner 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 provisions of section 544 of the Code."

9. The appellant filed complaint with the contention that the respondents have taken possession of the property in question on 12th October, 2017. While as per contention of the appellant the Member-III, Board of Revenue has decided their revision petition under Section 164 Land Revenue Act on 18th October, 2017, meaning thereby that at the time of complaint the matter was subjudice before Member-III, Board of Revenue, Balochistan Quetta. Even otherwise the Board of Revenue has dismissed the revision petition of the appellant vide order dated 18th October 2017, whereby it was held that notification No. 301-8/77-Revenue-729-48 dated 18-02-1977 is applicable only for Bazgar Moroosi "occupancy tenant" but not for Bazgar Lathband. The appellant in his complaint himself stated that his father was Lathband Bazgar and as per referred notification the Lathband Bazgar is not entitled for ownership.

10. The record further transpires that the complainant has not mentioned the boundaries or mutation/inteqal number of the property in question. Even the complainant never mentioned that where the property is situated, nor in the prayer clause mentioned the boundaries, mutation number and area of the property in question. The party who sought relief from the court in his favour should specifically pray for. Where the relief is not specifically sought the court should not grant such relief. Reliance is placed on the case of Abdullah v. Yahya Bakhtiar PLD 2001 SC 158, wherein it was held: "

7. How a Court can grant a relief which was never prayed for in a categoric manner. In our considered view proper application for producing additional evidence was never made. In such view of the matter the question of any discrimination does not arise."

11. The report submitted by SHO shows that the property in question is in possession of respondents. Admittedly there is civil dispute between the parties. Even the complainant has not mentioned when the respondents have illegally and forcefully dispossess him. The record further transpires that no evidence in regard of forceful dispossession was produced by the appellant during inquiry in order to substantiate its claim. The Apex court in the case of Waqar Ali v The State through Prosecutor/Advocate General Peshawar PLD 2011 SC 181 held:' "

14. The provisions of the Act, in our opinion, have to be interpreted in line with established jurisprudence on criminal law. This will ensure that the process of law is not abused through filing of vexatious complaints. Courts are also duty bound to scrutinize complaints and, if necessary, examine complainants, to protect hapless victims of false complaints or complaints which do not show the existence of all necessary elements of an alleged offence. We should also add that a bald assertion in the complaint alleging mens rea may not (depending on the facts of a case) justify the assumption of jurisdiction if the attendant circumstances set out in the complaint or ascertainable from material filed in support thereof, do not hear out such allegation." The case laws cited by the learned counsel for the appellant are distinguished. In view of above discussion the criminal acquittal appeal is dismissed. SA/69/Bal. Appeal dismissed.