2017 P Cr (PLP)

SARDAR MUHAMMAD SARFRAZ DOGAR, J.

By virtue of instant constitutional petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan 1973, Usman Ali/petitioner has sought setting aside the impugned order dated 12.1.2016, .passed by the learned Additional Sessions Judge, Toba Tek Singh, whereby he has dismissed the application under section 265-K, Cr.P.C. filed by the petitioner in a private complaint titled 'Munawar Hussain v. Usman Ali, etc.' filed by respondent No.3 under section 5 of Illegal Dispossession Act, 2005.

2. Succinctly, the facts required for determination of the petition in hand, are that respondent No.3 presuming to be owners of land measuring 2-Kanals, consisting upon six shops and a cattle shed including utility connections, falling in square No.38, Hactor No.2/2/1, situated at Jhang Road, Toba Tek Singh filed a complaint under section 5 of the Illegal Dispossession Act, 2005, alleging therein that in the night between 29/30.12.2013, at about 8.00 P.M. the petitioner along with six others all armed with firearm weapons in connivance with each other came there to demolish the shops and started raising lalkaras and threats of dire-consequences; that respondent No.3 was available at the spot; that the petitioner and others aimed weapons upon respondent No.3 and started demolishing the shops and took away the debris along with them; that in the meanwhile, Muhammad Kamran and Ali Ahmed along with so many peoples gathered there and witnessed the occurrence; that in the night between 01.1.2014/31.12.2013, the petitioner along with his co-accused armed with different weapons and demolished the shops and took possession of the same; that respondent No.3 lodged an application to the DPO Toba Tek Singh; that the petitioner and others have been summoned by the learned Additional Sessions Judge, Toba Tek Singh; that the petitioner and others have lodged an application under section 265-K, Cr.P.C. before the learned Additional Sessions Judge seeking their acquittal on the ground that they are co-sharers and the litigation regarding the land in question is pending in the Civil Courts as well as in Revenue Courts; that criminal litigation is also pending between the parties regarding the said land; that the learned Additional Sessions Judge after hearing arguments advanced by learned counsel for the parties dismissed the application vide impugned order dated 12.1.2016 on the ground that prima facie sufficient incriminating material is available on the record to connect the petitioner with the commission of alleged offence. Hence, this petition.

3. Learned counsel for the petitioner, while opening his arguments, submitted that the petitioner and others including respondent No.3 are co-sharer over the disputed land. Learned counsel vehemently contended that parties are involved in civil as well as criminal litigation and revenue Courts regarding land in question; that there is nothing on record to establish that the petitioner and his co-accused belong to land grabbers or Qabza group, therefore, provisions under the Illegal Dispossession Act do not applicable on the case of the petitioner. Further adds that the learned Additional Sessions Judge has erred in law while dismissing the petitioner's application under section 265-K, Cr.P.C., which is liable to be set aside.

4. Learned Assistant Advocate General Punjab assisted by learned counsel for the respondent vehemently controverted the assertions made on behalf of the petitioner. Learned AAG forcefully submitted that the petitioner along with others are specifically nominated in the complaint; that charge has been framed against him and the case is fixed for recording of prosecution evidence; that as per settled law the civil and criminal proceedings can run simultaneously; that prosecution has sufficient incriminating material to connect the petitioner and his co-accused with the commission of alleged offence. In these circumstances, it was prayed that the learned trial court while attending each and every aspect of the case has rightly passed the impugned order, which in view of latest dictates of law does not call for any interference by this Court.

5. Arguments heard. Record perused.

6. At the outset it is pertinent to mention that Illegal Dispossession Act, 2005 is a special legislation to protect the lawful owners and occupiers of immoveable properties from their illegal or forcible dispossession therefrom by the property grabbers. It will be expedient to reproduce the provisions of section 3 of the Act for ready reference:- "

3. Prevention of illegal possession of property, etc.

(1) No one shall enter into or upon any property 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 offence shall be compensated in accordance with the provisions of section 544 of the Code.

7. The object and spirit of legislation of Illegal Dispossession Act, 2005 is to curb the activities of the property grabber. Preamble of the Act ibid manifest that it aims to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession by the property grabbers. In the instant case there is no denial to this fact that the version of the parties qua ownership of the disputed land is at variance regarding which civil litigation is already pending mainly involving the title of the land. Admittedly, the parties are co-sharer of the land in question and it is settled law that the co-sharer does not fall within the definition of land grabbers/qabza group. It is pertinent to mention here that the concerned SHO in his report submitted before the learned Ex-Officio Justice of the Peace, regarding the land in question, that the matter between the parties is of civil nature. Therefore, the case being of civil nature, the provisions of Illegal Dispossession Act, 2005, are not attracted to the facts of the case because the same is restricted to class or group of persons, who have antecedents of being property grabbers/qabza groups and the said Act is not applicable to the cases involving disputes over possession of immoveable property.

8. Facts and circumstances of the lis in hand lead to only one conclusion that there is dispute over settlement between the parties, for which civil court is the proper forum. Therefore, further proceedings in the complaint would be futile exercise and the learned trial court has to allow the application under section 265-K, Cr.P.C. but the learned trial Court has failed to do so by applying its judicious mind in the matter.

9. In my view, through filing of complaint under the Act XI of 2005, an attempt has been made by respondent No.3 to convert a civil dispute between the parties into a criminal case, which was liable to be struck down being abuse of process of law. In this context, I respectfully refer the case of Bashir Ahmad v. Additional Sessions Judge, Faisalabad and 4 others (PLD 2010 SC 661), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "It had been held by a Full Bench of the Lahore High Court, Lahore in the case of Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 that the Illegal Dispossession Act, 2005 has no application to cases of dispossession between co-owners and co-sharers and also that the said Act is not relevant to bona fide civil disputes which are already sub judice before civil or revenue Courts. It had also been declared by the Full Bench of the Lahore High Court, Lahore in that case that the Illegal Dispossession Act, 2005 was introduced in order to curb the activities of Qabza groups/property grabbers and land mafia. It has been conceded before us by the learned counsel for the petitioner that no material is available with the petitioner to establish that respondents Nos.2 to 4 belonged to any Qabza group or land mafia or that they had the credentials or antecedents of being property grabbers.

In the circumstances of this case mentioned above we have entertained an irresistible impression that through filing of his complaint under the Illegal Dispossession Act, 2005 the petitioner had tried to transform a bona fide civil dispute between the parties into a criminal case so as to bring the weight of criminal law and process to bear upon respondents Nos.2 to 4 in order to extract concessions from them. Such utilization of the criminal law and process by the petitioner has been found by us to be an abuse of the process of law which cannot be allowed to be perpetuated."

10. For what has been discussed above, I hold that a civil dispute cannot be allowed to be converted into a criminal case by implicating co-sharers of the land in question as this would be misuse of the provisions of the Act XI of 2005 because regarding the civil disputes or the dispute amongst the co-sharers, the Civil Court is the competent forum to resolve the said issue after recording of evidence. Therefore, the learned trial court has wrongly dismissed the application under section 265-K, Cr.P.C. The impugned order is not only perverse but also arbitrary and does not sustain in the eye of law, therefore, the impugned order dated 12.1.2016 passed by learned Additional Sessions Judge, Toba Tek Singh is liable to be set aside as there is no probability of conviction of the petitioner and others even after recording of evidence in the complainant.

11. For the above reasons, this writ petition is accepted and impugned order dated 12.1.2016 passed by the learned Additional Sessions Judge, Toba Tek Singh is set aside and application under section 265-K, Cr.P.C. lodged by the petitioner and his co-accused is accepted and the petitioner and his co-accused are acquitted of the charge. Their sureties stands discharged. ZC/U-4/L Petition allowed.