2013 PLP 1001 (YLR)

SHAH JEHAN KHAN AKHUND-ZADA, J.

Nawabzada Muhammad Usman Khan petitioner through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has challenged the impugned order dated 4-11-2011 inadvertently written as 29-5-2011 passed by Additional Sessions Judge-VIII, Mardan whereby he dismissed the complaint of the petitioner under section 3 of the Illegal Dispossession Act, 2005 being void, without jurisdiction, without lawful authority and of no legal effect.

2. Brief facts of the case are that the petitioner/complainant Nawabzada Muhammad Usman Khan filed a complaint under section 3 of the Illegal Dispossession Act, 2005 against his brother Muhammad Fateh Khan respondent No.1 in the Court of the learned Sessions Judge, Mardan alleging therein that he is owner in possession of the agricultural land to the extent of his share being legal heirs of Late Nawabzada Muhammad Khalid Khan; that previously the said land had been tenanted by his late father but due to the default on the part of the tenants, suits for ejectment and produce were brought in the Court of Collector Mardan which was decreed vide order dated 7-11-1983 and the said decree was maintained up to the apex Court and there after possession of the disputed land was handed over to the petitioner; that on 21-8-2011 respondent No.1 along with his duly armed servants entered the said property and has illegally dispossessed the petitioner by respondent No.1 and destroyed the standing crops of sugarcane with Tractors without any legal justification, thus, they have committed offence under section 3 of the Illegal Dispossessions Act, 2005. After summoning of inquiry report from the concerned Police Station, the case was fixed for arguments first on the maintainability of the complaint and after hearing the learned counsel for the parties, the complaint was dismissed by the learned Additional Sessions Judge-VIII, Mardan vide order dated 4-11-2011 which is now impugned herein.

3. We have heard the learned counsel for the petitioner as well as the learned counsel for respondent No.1 on pre-admission notice and have also gone through the materials available on file.

4. The question for determination before this Court is as to whether the facts and circumstances of the instant case do constitute the offence punishable under section 3 of the Illegal Dispossession Act, 2005 which provision of law having direct relevance with this petition is reproduced below:-- "

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."

5. According to contents of the complaint it is an admitted fact that the petitioner and respondent No.1 are the real brothers being the sons of Nawabzada Muhammad Khalid Khan who in his life time partitioned his land amongst three sons i.e. petitioner, respondent No.1 and Changez Khan. It is also an admitted fact that there is a dispute between the co-owners over possession of the property and to this effect the petitioner/complainant has filed civil suit under section 9 of the Specific Relief Act, which is pending adjudication and simultaneously registered a criminal case vide F.I.R. No.749 dated 28-8-2011 under sections 379, 447, 427,148 and 149 against respondent No.1 and during the pendency of the above matter, the petitioner also filed the instant complaint so it was a dispute between the two brothers over the property left by their predecessor-in-interest, furthermore, respondent No.1 neither belongs to a class of property grabbers nor Qabza Group, hence no case under section 3 of Illegal Dispossession Act has been made out. Reference is made to the judgment of a Full Bench of the Lahore High Court in Zahoor Ahmad and others v. The State and others (PLD 2007 Lahore 231) wherein it has been held that the Illegal Dispossession Act, 2005 was restricted in immovable property which has allegedly come about through the hands of a class or group of persons who could qualify as property grabbers/Qabza Groups/land mafia and the said Act was being invoked and utilized by the aggrieved persons against those who have credentials of antecedents being members of the Qabza Groups or land mafia. It was further held that the Illegal Dispossession Act, 2005 has been found to be completely nugatory to its contents as well as objectives. Reliance is also placed on "Mobashir Ahmad v. The State (PLD 2010 SC 665) and "Habib Ullah v. Abdul Manan" (2012 SCMR 1533).

6. In the above circumstances, we find that it was a dispute between the two individuals over the possession of the property in dispute and the facts and circumstances of the case were not sufficient to hold the complaint filed by the petitioner under section 3 of the Illegal Dispossession Act, 2005 against respondent No.1 who is his real brother, maintainable and thus, the learned Additional Sessions Judge has rightly dismissed the complaint being not maintainable which cannot be set at naught by this court in its constitutional jurisdiction. Consequently, this writ petition stands dismissed. MWA/418/P Petition dismissed.