2015 PLP 595 (MLD)

SAJJAD ALI SHAH, J.

Through instant petition, the petitioners seek quashment of two FIRs bearing No.36/2011 and 40/2011, both under section 8(1) of Sindh Public Property (Removal of Encroachment) Act, 2010 of Police Station Anti-Encroachment, Karachi. In order to decide the question raised before us, it would be essential to reproduce both FIRs, which read as follows:-- FIR No.36/2011 Verbally stated by the complainant; that I am posted as Mukhtiarkar in Gadap Town, Karachi. Today Supervising Tapedar Rauf Shaikh informed me that some persons on the Government Land naqabuli 37-40 situated in Deh Kharkharo Tapo, Khonkhar, its total admeasuring 32 acres and 27 Ghuntas are illegally occupied by constructing/erecting boundary wall thereat. On such information accompanied with staff reached at the above said Government Land at 12:00 noon, where the persons present there fled away on seeing us. On enquiry it came to know, they were 1). Dr.Rafiq son of Shafi Muhammad, 2) Ajmal son of Rafiq, 3) Muhammad Hanif son of Shafi Muhammad 4) Shahid son of Rafiq, 5) Umair son of Shafi Muhammad, 6) Hayat son of Shafi Muhammad, 7) Dr. Saify son of unknown, 8) Rizwan Manager son of not known, 9) Ghulam Rashool son of not known, 10) Haji Hussain Jokhio son of Timu Jokhio, 11) Amjad Jokhio son of Hussain Jokhio they were illegally occupying the Government land naqaboli No.37 admeasuring 19 acres and 16 ghuntas, by constructing boundary thereat. I informed my higher officer, on their directives, now I have come to report that action may be taken against the above accused persons under Sindh Public Property Act 2010. Report heard and found correct. Sd/- in English POLICE ACTION. I, the Inspector Khursheed Ahmed Rind, do hereby certify that report of complainant was registered in verbatim, read over to him, who admitted it to be correct and put his signature in English under the report. From the text of report, nature of offence falls under section 8(i) Sindh Public Property Removal Act, 2010. Therefore case was registered against above said accused persons. Inspector Shahnawaz shall conduct the investigation by the orders of SHO. Copies of FIR shall be distributed as per rules. Sd/- in English Inspector Khrusheed Ahmed Rind PS Anti Encroachment Sindh, Karachi 29-9-2011 FIR No.40/2011 Verbally stated by the complainant; that I am posted as Mukhtiarkar in Gadap Town, Karachi. Today Supervising Patwari Rauf Saleem and Patwari Muhammad Ali Kalhoro informed me that on the Government Land Naclass 212 situated in Deh Kharkharo Tapo, Khonkhar near Memon Goth, Karachi, admeasuring of 80 acres, some unknown persons are occupying by constructing/erecting boundary wall thereat. I intimated in this regard to Worthy D.O Revenue and accompanied with him reached at the above said Government Land, where the occupying persons fled away on seeing us. On enquiry it came to know, they were 1). Ajmad son of Hussain Jokhio, 2) Hussain Jokhio son of Shamo Jokhio, 3) Dr. Saify son of unknown, 4) Najam Zia, 5) Joziph son of unknown, 6) Muhammad Iqbal son of Bacho and 7) Muhammad Hussain son of Muhammad Siddique. The illegal encroachments were got removed, I complained against above mentioned accused persons for illegally occupied the Government Land. Action may be taken under Public Property Act, 2010. Sd/- in English POLICE ACTION. I, the Inspector Khursheed Ahmed, do hereby certify that report of complainant was registered word by word, read over to him, who admitted it to be correct and put his signature in English under the report. From the text of report, nature of offence falls under section 8(i) SPPA, 2010. Therefore case was registered against aforementioned accused persons. Inspector Khan Shahnawaz Khan shall conduct the investigation by the orders of SHO. Copies of FIR shall be distributed as per rules. Sd/- in English Inspector Khrusheed Ahmed Rind PS Anti Encroachment Sindh, Karachi 6-10-2011 It is submitted that the petitioner No.1 is a world renowned scientist and researcher in the field of pharmaceutical, medicines, neurochemical, pharmacological, herbal medicine, etc. and has remained Vice Chancellor, University of Karachi till his retirement on 5-1-2004. Per counsel, petitioner No.1 has been granted British Council University Administrator Award and is author of several books and journals in the field of research nationally and internationally and has attended 44 national seminars/conferences in the field of pharmaceuticals and is member/fellow of Chemical Society FCS London, Fellow of Royal Society of Health, FRSH London and also representative of several universities. Per counsel, petitioner No.1 before his retirement from the position of Vice Chancellor, University of Karachi, entered into research for developing an Anti-Malaria Potential and its active constituents and derivatised natural products of the aerial parts of alstonia scholaris (plant) which product was to be used as Anti-Malarial Agent and also for Dengue fever and for such purpose petitioners purchased 04-00 acres of land in Naclass No.52 in Deh Thado from Raja Najeeb Zulfiquar and 3-00 acres of land in Naclass No.52 in Deh Thado from Abdul Ghani, both lands were duly transferred in the name of petitioner No.1 by the then Deputy Commissioner Malir vide Transfer Order No.Rev/Malir/ 105/2001 and No.Rev/Malir/106/2001, dated 6-8-2001. Per counsel, somewhere in the month of September certain land grabbers along with respondents Nos.4, 5, 6 and 8 came on the land of petitioner No.1 and threatened his servants for vacating the said land. It is contended that the servants of the petitioner No.1 informed him that the respondents had come to dispossess them and consequently the petitioner No.1 on telephone informed the respondent that he is the owner of the said land and is using the said land for cultivation of plants to be used for extracting Anti Malarial Agent. Per counsel, notwithstanding at the instance of respondent No.4, an FIR No.36/2011 was lodged against the petitioners and others for occupying the Government land, whereafter petitioner No.1 tried his level best to satisfy the respondents as to his title but all went in vain, as the respondents were only asking the petitioner to vacate the said land and on his refusal second FIR was lodged against him. Per counsel, the said illegal action on the part of the respondent compelled the petitioners to file the instant petition and this Court vide its order dated 11-10-2011 upon furnishing surety in the sum of Rs.25,000 extended protection against their arrest. It is contended that though the prosecution after investigating both the crimes recommended their disposal in 'A' class but such treatment of the crimes would always leave a room open for the prosecution to arrest and try the petitioners, therefore, the proceedings emanating from the said crimes are liable to be quashed. Per counsel since the respondents have now admitted that the petitioner was never an encroacher but is/was owner of the land in his possession, therefore, the proceedings emanating from the set of crimes are liable to be quashed. Mr. Ahmed Pirzada, learned counsel appearing for the respondents contends that since there were other absconding accused persons involved in the set of crimes who had trespassed upon the government land and were not traceable therefore, the case was recommended for disposal in 'A' class. As to trespass upon the government land, Mr. Ahmed Pirzada, learned counsel appearing for the respondents submits that the FIR against the petitioners was the result of a misunderstanding as it has been ascertained now that the petitioner has not trespassed on any portion of government land. We have heard the learned counsel for the respective parties and perused the record as well as the scheme of law as detailed in the Sindh Public Property (Removal of Encroachment) Act, 2010 (hereinafter referred to as "Act of 2010") in order to ascertain as to whether the allegation against the petitioner in the stated crime constitute an offence under section 8(1) of the Act of 2010. Perusal of Section 3 of "Act of 2010", in the context of the case in hand, reflects that that Government or any authority or an officer authorized by the Government through an order may require any person directly or indirectly responsible for encroachment to remove the structure of such encroachment, if any, raised by him on the public property, within a period not less than two days. Such order may be served by giving or tendering it to the person responsible for encroachment or any adult male person residing with him or by affixing it at a conspicuous place on or near the public property to which it relates or sending it by registered post, UMS, TCS, or publication. Whereas, section 4, provides that the person served with such order for removal of encroachment, may within three days from the service of such notice, prefer a review petition to Government or any authority or officer who has passed such order and the Government or the authorized officer, as the case may be after perusing the review petition and giving an opportunity to the petitioner or his duly authorized agent of being heard, confirm, modify or vacate the order within fifteen days on receipt of such review petition. Likewise, sections 5, 6 and 7, provide that if such person refuses or fails to vacate the public property or remove the structure raised thereon after notice period of three days or after dismissal of his review petition he shall be evicted by the Government or the authorized officer or by applying such force as may be necessary and the structure, if any, raised by such person on the public property shall vest in Government and in case the structure is demolished cost of demolition or removal of such structure shall be recovered from the person responsible for such encroachment as arrears of land revenue. In this context, we would examine section 8 under which the aforestated FIRs were lodged and would reproduce its contents:-- "

8. Punishment

(1) Any person responsible for encroachment may be punished with imprisonment of either description for a term which may extend to ten years but not less than one year and with fine of rupees equivalent to the market value of the property encroached upon or with both. Explanation : The market price for the purpose of this section shall be determined by a committee comprising Member Board of Revenue as its convener and Executive District Officer (Revenue), District Officer (Revenue), Deputy District Officer (Revenue), Sub-Registrar and Mukhtiarkar (Revenue) of the concerned area as Members. (2) An abettor including a public servant who is directly or indirectly involved in assisting or abetting the offence of encroachment, shall be punished with imprisonment for a term which may extend to five years but not less than one year, or with fine which may extend to five lac rupees or with both. (3) If the officer incharge of police station willfully fails, to avoid to provide the necessary police assistance under sub-section (2) of section 5 the matter shall be reported to the Provincial Police Officer Sindh for his suspension with immediate effect and removal from service." Perusal of Section 8 in the context of scheme of Act 2010 as examined above clearly reflects that an FIR under section 8(1) of the Act of 2010 can only be registered against those encroachers who despite issuance of an order directing removal of encroachment as contemplated in section 3(1) of the Act of 2010 and without preferring any review or after dismissal of their review petition fails to remove the encroachment. Perusal of scheme of law clearly establishes that the legislature in order to prevent the misuse of penal provisions has required the enforcer of law to first issue an eviction order/notice and thereafter has provided a review against such order with an opportunity of being heard in order to ensure that no unnecessary harassment is caused to the genuine owners/ occupants of the land so allotted. Whereas perusal of the FIR in the instant case reflects that Mukhtiarkar himself has reported that he saw certain illegal occupants on the government land who had erected boundary wall thereon and when he along with his staff reached there, all the illegal occupants fled away. It is clear from the perusal that even if the allegations in the FIR are deemed to be correct, but still in our opinion, no case under section 8(1) could have been registered, as neither any order as contemplated under section 3 of the Act of 2010 directing alleged illegal occupants to remove encroachment was passed or served upon them nor they made any resistance. At this juncture we asked Mr. Pirzada to assist the Court as to whether the respondents in the circumstances could have registered FIR against the petitioners or other accused persons. Mr. Pirzada fairly conceded that keeping in view the scheme of law as provided in the Act of 2010 the respondents in the circumstances could not have registered FIR as no order in terms of section 3(1) of the Act of 2010 was issued or served upon the petitioners or other accused persons and perhaps for this reason after lodging FIR the same were recommended for disposal in "A" Class. In view of what has been discussed above, we are of the considered view that the respondent No.4 malafidely and with ulterior motive has lodged FIR under the provisions of section 8(1) of the Act of 2010 by misusing his authority. Consequently, we while quashing the FIRs direct the Senior Member, Board of Revenue, to initiate departmental proceedings against him and to submit compliance report through MIT of this Court within four weeks. Likewise, Inspector Khursheed Ahmed Rind of Anti-Encroachment Cell, who is present in Court and is not able to explain his action as to misuse of his authority of lodging the FIR, which resulted in ultimate harassment/humiliation to the petitioners and others which not only reflects mala fide on his part but total incompetence and consequently we while directing his suspension would further direct I.G. Sindh to initiate departmental proceedings against him for misusing his power/authority and to report compliance within four weeks. SA/Z-21/Sindh Petition allowed.