2011 PLP 647 (YLR)

IJAZ AHMAD CHAUDHARY, J.

Though this revision petition under section 439, Cr.P.C. the petitioner has called in question the order dated 2-6-2010 passed by the learned Additional Sessions Judge, Pattoki through which he .has not summoned respondent No. 1 to face a trial in a private complaint instituted by the petitioner under sections 3 and 4 of the Illegal Dispossession Act, 2005.

2. The brief facts of the case narrated in the private complaint are that the complainant/petitioner has taken a parcel of land on lease measuring 440 kanals and 2 marlas situated in Khewat No.116, Khatoni No. 283, Mauza Wan Aadhan, Tehsil Pattoki at the rate of Rs. 15,000 per killa respectively for a period of ten years on 20-6-2007 as per agreement arrived at between the parties on the terms and conditions settled and mentioned in the agreement. According to the petitioners respondent No. 1 and Ghulam Muhammad have handed over the possession of the said agricultural land to the petitioners and the petitioners have duly paid lease money through Demand Drafts which was deposited by respondent No.1 in his account and the said amount has been transferred in his name. The petitioner claimed that they have been cultivating the said land for the year 2008-2009 and the lease amount of Rs. 40,85,199 has been paid. He has also paid an amount of Rs. 42,65,212 for the year 2009-2010. The expiry date of the lease was till May, 2017. It is alleged in the private complaint that the servants of the petitioners namely Dilshad and Khalid Rasheed were present at the disputed land when Ghulam Muhammad, respondent No.1 in private complaint along with 10 unknown persons while armed with fire-arms in the middle night of 5/6-5-201.0 resorted to aerial firing and also had given beating to above said servants who stated that Ghulam Muhammad has told them that respondent No.1 of the present revision petition had directed him to take the possession of the land and also threatened the witnesses with dire consequences and in the meanwhile the employees had left the place of incident and proceeded towards Pattoki Sugar Mills and stated about the happening of occurrence. According to the petitioners respondents Nos.1 and 2 of the private complaint are guilty of sections 3/4 of the Illegal Dispossession Act, 2005.

3. The learned counsel for the petitioners has contended that there was a written, agreement establishing that the land was taken on lease by the petitioners for a period of ten years and they were in lawful possession of the disputed land. It is also established from the documents that the leased money was paid to respondent No. 1 till 2010. It is also contended that the petitioners have also served with a legal notice dated 28-6-2008 which has been issued by Sardar Ahmad Jamal Sukhera one of the owners of the said disputed land and reply was submitted by the petitioner on July 23rd, 2008. A letter was also addressed to the counsel for the petitioners in response of the reply of the said letter on 25-10-2008 and again reply of the said letter is also on the record as Annexure-G. The petitioners had submitted an application before the Deputy Superintendent of Police, Pattoki about the incident which has subsequently culminated into private complaint, when no action was taken on the application the petitioners were constrained to file application before the Inspector-General of Police, Government of Punjab. It is contended that in the complaint, it has categorically been mentioned that action has been taken by respondent No. 1 on the direction of respondent No. 2 in the complaint. The learned counsel for the petitioners relies upon Article 19 of the Qunan-e-Shahadat, 1984 that relevant facts of the case are always to be taken into consideration and it is also contended that the statement of the co-accused of respondent No.1 namely Ghulam Muhammad which he has made before the witnesses at the time of incident is also a relevant fact. The learned counsel also refers section 436, Cr.P.C. in support of his contention that this Court has ample powers to refer the matter back to the learned Additional Sessions Judge, Pattoki to the extent of non-summoning of respondent No.1 by the learned trial Court. The learned counsel for the petitioner has relied upon PLD 1991 SC 397, PLD 1971 Lahore 929, 2001 PCr.LJ 1086 and 1993 PCr.LJ 704 (D.B.).

4. The learned counsel for respondent No. 1 on the other hand opposed this petition on the ground that the learned trial Court has to form a prima facie opinion about the guilt or innocence and for that purpose a cursory statement of the complaint was required to be recorded and no other witness was required to adduce statement before the learned trial Court. The police have found the case of the petitioner to be false and such opinion was based on the Revenue Record and the other supporting documentary evidence. It is contended that at the most the case of the petitioner against respondent No. 1 was based on the statement of co-accused Ghulam Muhammad who statedly committed the occurrence at the asking of respondent No.

1. All that is stated in the private complaint by the petitioner is a concocted story. The, witnesses of the occurrence are personal servants of the petitioner and they did not justify their presence for staying at the place of occurrence over night in the village because they are residing at Lahore. In the instant 'complaint it has been stated that twelve persons are giving beating but any medical report in this regard has not been produced by the petitioner to substantiate their stance taken in the private complaint. It has also been written in the last portion of the private complaint that the incident has been reported to the Police Station but the report of the police is at different footing to that of the version narrated in the private complaint. There is a delay of twenty-six days in filing the private complaint. A bare perusal of the agreement shows that ten persons are from one side and two are from other side but only two persons have made their signatures on this agreement. Even no witness is available of this agreement. According to section 3 of the Transfer of Property Act at least two witnesses have to be signed in case of any agreement arrived at. Reliance is placed on 1986 MLD 2719, 2005 YLR 3258. It is also contended that respondent No.1 has not entered into the disputed property at the time of dispossession of the petitioner as alleged by the petitioner in the private complaint. It has been pointed out by the petitioner himself that respondent No. 1 was abroad and was not present in the country. As respondent No. 1 had not entered into possession of the disputed property, thus, provisions of section 3 of the Illegal Dispossession Act, 2005 do not attract in this case. Reliance is placed on 2007 SCMR 1066, 2010 YLR 593, PLD 2010 SC 661, PLD 1968 Lahore 703, 1991 PCr.LJ 1063 and 1996 MLD

186. In the light of above judgments when the penal provisions of section 109, P.P.C. are not attracted how respondent No.1 can be summoned in the private complaint. According to the report of E.D.O. (R) out of all the three villages nobody has said that the petitioner were in possession of the land in dispute so as to be dispossessed. No illegality has been pointed out to interfere in the impugned order of the learned trial Court. The learned Additional Prosecutor-General has also followed the submissions made by the learned counsel for respondent No. 1 and stated that the three basic ingredients of abetment have not been fulfilled.

5. I have heard the learned counsel for the parties and perused the record. According to the petitioner he has moved an application to the Deputy Superintendent of Police on 6-5-2010 which was signed by him in which he has categorically stated that the incident had taken place between the night of 5/6-5-2010 and Muhammad Zakki co-accused of respondent No.1 along with twenty-five unknown persons have participated in the occurrence and this incident had been taken place on the conspiracy and permission of respondent No.1 but it has not been explained that at which place the conspiracy was hatched by respondent No 1 and who are the witnesses of the said conspiracy. By filing the private complaint a contradictory stance has been taken that co-accused of respondent No.1 had told the complainant that he was ordered by respondent No.1 to take possession. There is no legally admissible evidence available on the record to make out a prima facie case against respondent No.1. The statement of co-accused had got no legal value and the learned counsel for respondent No.1 has rightly relied upon 2005 YLR 3258 the relevant portion of the same is as under: Evidence against the accused was only to the extent of police statement/confession of the main accused to the effect that the accused had given to him the pay orders in question for deposit etc--Even if the said confession was proved before the Trial Court, it would have to be corroborated in material particulars by other reliable and cogent evidence in order to be used against the accused, as evidence of an accomplice could not be accepted at its face value for convicting a co-accused

Arrest of the accused on the information of main accused could hardly furnish any evidence as to his involvement in the crime and he could not be convicted on such corroboratory evidence alone

Accused has been placed in Column No.2 of the challan after police investigation

Charge against accused having not even been framed, no question of trial could arise

Accused could always be joined at a subsequent stage of the proceedings, if same evidence would come on record pointing towards his involvement in the crime

Proceedings pending against the accused before the trial Court were quashed in circum stances.

6. The learned counsel for respondent. No. 1 has also placed his reliance on 1986 MLD 2719 and its relevant portion is reproduced as under: "Accomplice, value of

Except for bare statements of co-accused, no independent evidence produced by prosecution to substantiate allegation that accused supplied forged British Passports to them

Co-accused being accomplices, their statements, held, of no value and could not be utilized against accused. Conviction and sentence of accused under section 22 of Emigration Ordinance set aside in circumstances."

7. Another point of ponder to be discussed in this case is that whether the provisions of sections 3 and 4 of the Illegal Dispossession Act, 2005 apply to the extent or respondent No. 1 or not as admittedly he was not physically present at the time of alleged occurrence narrated in the private complaint instituted by the petitioner. It has also been admitted by the petitioner in the present revision petition that respondent No. 1 was abroad at the relevant time and even he was not present in the country. Thus, the provisions of section 3 of Illegal Dispossession Act, 2005 do not attract in this case because subsection (1) of the said section rightly starts from the sentence, "no one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so" and admittedly respondent No. 1 has not entered into the disputed property at the relevant time.

8. It may also not be out of place to mention here that the Illegal Dispossession Act, 2005 had been inducted into criminal law for the intruders called "property grabbers", also commonly known in local style of speaking as "Qabza Group" or "land mafia" whose primary chore or errand is to illegally or forcibly take possession of immovable properties belonging to other persons by way of utilizing force. The contents and objectives of the Act attract only upon the above-narrated persons and the same do not apply on the persons who have no credentials or antecedents of being property grabbers or being member of a Qabza Group or land mafia. It is admitted at all hands that respondent No. 1 is the owner of the land in dispute and -he is not possessing any history so as to establish that he belongs to property grabbers or being member of a Qabza Group or land mafia . Reliance is placed on the case of Zahoor Ahmad and 5 others v. The State and 3 others (PLD 2007 Lahore 231) and Bashir Ahmad v. Additional Sessions Judge Faisalabad and 4 others (PLD 2010 Supreme Court 661). The petitioner has relied upon some documents, i.e. an agreement of lease of the disputed land and some bill/receipts/ drafts reflecting payment of leased money and all these documents went a long way in supporting the stance of respondent No.1 that neither he was physically present at the time of occurrence to dispossess the petitioner nor he belongs to any Qabza Group.

9. The learned counsel for the petitioner has rightly stated that at the most section 109, P.P.C. will attract keeping in view the facts and circumstances of the case but it is also a settled law that the said provisions of Penal Code do not attract in the special law unless the special law itself indicates about the application of certain penal provisions, the same cannot be applied or set into motion. Reliance is placed on the cases of Mst. Robina Ashraf and 5 others v. Mst. Shagufta Fardous and 3 others (2009 PCr.LJ 1189), Basharat Iqbal v. Dr. Nargis Rehana and another (1993 MLD- 571), Syed Tofazal Hussain Shah and 2 others v. The State and others (1991 PCr.LJ 1063) and Saif Shah and 2 others v. Gulnaz Bokhari and another (1996 MLD 186). Even otherwise it is the case of the petitioner that Ghulam Muhammad co-accused of respondent No. 1 has stated at the time of occurrence that he along with others had come to dispossess the petitioner at the asking/order of respondent No. 1 but still now nothing has been brought on the record of this case from where it can be established that the above said Ghulam Muhammad had acknowledged or owned his statement to this extent. The accusation levelled by the petitioner in his private complaint to the extent of conspiracy of respondent No. 1 is mere a bald accusation which is not substantiated by any other material available on the record. 9-A. The learned counsel for the petitioner has thrown a great emphasis on Article 19 of Qanun-e-Shahadat, 1984 while arguing that the rule of Res Gestae applied in this case and tried to get the conspiracy allegedly hatched by respondent No. 1 into the definition of relevant fact. He has gone on to state that the rule Res Gestae has been broadly defined as matter incidental to the main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of the transaction and without a knowledge of which the main fact might not be properly understood. He his relied upon the cases of Muhammad Aslam Shah v. The State (1993 PCr.LJ 704), Faqir Muhammad v. The State (PLD 1971 Lahore 929), Riasat Ali and another v. The State (PLD 1991 Supreme Court 397) and Suhail and 3 others v. The State (2001 PCr.LJ 1086). I have, however, remained unable to follow the case-law cited by the learned counsel for the petitioner to the extent of this case because the facts and circumstances of this case are all together different, The incident has statedly been brought to the notice of the police when the petitioner has submitted application before the DSP, Pattoki on 6-5-2010 but according to the report submitted by the Station House Officer (Annexure-I) the incident has not been reported to him directly at the relevant Police Station. Even the petitioner has not produced anything on the record from where it can be established that the petitioner has directly or indirectly approached the concerned Station House Office for lodging F.I.R. The matter was thoroughly probed into by the police and the same has been found false on the basis of investigation and the documents available on the record. Even the learned trial Court has not found the private complaint as correct to the extent of respondent No. 1 and not deem it fit to summon him on the basis of material available on the record. I too would not persuade to order summoning respondent No. 1 on the basis of material provided so far in this case. Even otherwise if for the purpose of arguments the alleged declaration of Ghulam Muhammad before the petitioner at the time of occurrence is accepted as correct the same does not by itself sufficient to record his conviction, thus, no useful purpose will be served to summon him.

10. Apart from what has been discussed above no jurisdictional in-infirmity, illegally of approach, irregularity procedure or perversity of reasoning has been pointed out by the learned counsel for the petitioner so as to warrant an interfere in the impugned order dated 17-6-2010 and this revision petition being devoid of any merits is hereby dismissed. H.B.T./M-618/L Petition dismissed.