2016 P Cr (PLP)

AMER RAZA NAQVI, J.

This appeal was filed against judgment dated 18.12.2009 passed in Direct Complaint No.09/2009 by learned IVth Additional Sessions Judge, Karachi East. The direct complaint was filed by respondent No.1 against the appellant and others under sections 3 and 4 of Illegal Dispossession Act, 2005. Through impugned judgment learned VIth Additional Sessions Judge, Karachi East convicted the appellant under section 3(2) of the Act, 2005. Appellant was awarded sentence to suffer R.I. for 8 years and to pay fine of Rs.10,000/=.

2. Learned counsel for the appellant submitted that in the first place the manner in which the charge was framed does not attract any provision of the Illegal Dispossession Act, 2005 as even in the charge it was not mentioned that possession was taken forcibly. He further submitted that the sole witness examined in the case, who was complainant in the matter and respondent No.1 in these proceedings did not say anything about forcible dispossession and therefore, the sections applied are not at all attracted in the facts and circumstances. The very statement of the complainant shows that matter was purely of civil nature and it was converted into criminal proceedings just to put pressure on the appellant. Learned counsel has pointed out answer of the appellant before the trial Court in response to Question No.5 put to him under section 342, Cr.P.C. and pointed out that civil litigation was referred in such statement. In addition to that he has further pointed out that the lease deed and other relevant documents were not confronted to the appellant at the time of recording of his statement under section 342, Cr.P.C. In support of his contention learned counsel has relied upon the case law reported as PLD 2010 SC 661 and 2012 SCMR 1533. In 2012 SCMR 1533 it has been observed that Illegal Dispossession Act, 2005 is applicable only to those accused persons, who have the credentials or antecedents of qabza group and are involved in illegal activity and belong to gang of land grabbers or land mafia. In PLD 2010 SC 661, the Honourable Supreme Court found the petitioner in such case that he has utilized the criminal law and process in respect of the dispute between the Parties, which was a bona fide dispute already sub-judice before the Civil and Criminal Courts and such practice was discouraged.

3. Learned Assistant Prosecutor General frankly submitted that ingredients of Illegal Dispossession Act, 2005 were not present in the case. He further submitted that no exact date and time of commission of the alleged offence was mentioned in the charge. He further submitted that the statement of sole witness recorded before the trial Court also does not disclose any thing which could attract the provisions of the Act and therefore he submits that appellant is entitled to be acquitted in the case.

4. Learned counsel for respondent No.1 has submitted that parties have patched up their matter and currently respondent No.1 has no grievance against the appellant in respect of subject matter of the case or otherwise and therefore he is not interested in the outcome of the present appeal, which may be decided in accordance with law.

5. I have heard all the learned counsel present and perused the record with their able assistance. Both the learned counsel appearing for the appellant and the State are correct that in view of the case law relied upon by the learned counsel for the appellant the ingredients of the Act are not present in the case. The charge does not specify the allegations which could constitute an offence under the relevant provisions of Illegal Dispossession Act, 2005. Even, the statement of complainant before the trial Court does not disclose any thing which could attract section 3(2) of the Act, 2005, under which the appellant was convicted.

6. In the above facts and circumstances, this appeal is allowed. Appellant is acquitted from the charge framed against him by the trial Court. He is present on bail, his bail bond is cancelled and surety is discharged. The appeal stands disposed of in the above terms. HBT/F-21/Sindh Appeal allowed.