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Petitioner: Ch. Muhammad Aslam VS Respondent: District & Sessions Judge, Muzaffargarh etc
Court Name: Lahore High Court Judge(s): Anwaarul Haq Pannun Title: Ch. Muhammad Aslam vs District & Sessions Judge, Muzaffargarh etc Case No.: (1) Writ Petition No.11067 of 2016 (2) Criminal Miscellaneous No.14-Q of 2016 Date of Judgment:2019-04-30 Reported As: 2020 P Cr. L J 742, 2019 LHC 2702 Result: petition dismissed
Judgment Anwaarul Haq Pannun, J. Through this single judgment, I propose to decide the instant Writ Petition No.1 1067/2016 filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calling in question the vires of order dated 11.07.2016 passed by the learned Sessions Judge, Muzaf fargarh whereby "application filed by respondents No.2 to 10, herein, for impleading them as party in a private complaint " filed by the petitioner/complainant titled "Ch. Muhammad Aslam v. Mushtaq Ahmad etc" under Section 3,5 of Illegal Dispossession Act, 2005, has been accepted with the following observation:- "In these circumstances, the petitioners are necessary and proper party to be heard for just disposal of this complaint. Hence relying upon PLJ 2014 Lahore 1192, Muhammad shakeel-ur-Rehman, etc. petitioners are directed to be impleaded as respondents and after their impleadment amended complaint be submitted in the court on 15.07.2016. and Criminal Miscellaneous No.14-Q of 2016 titled "Muhammad Shakeel-ur Rehman etc v. District & Sessions Judge, Muzaffargarh etc" which has arisen out of the same proceedings, seeking setting aside the order dated 31.05.2016, the operative part of the said order is reproduced hereunder:- "........................... Report of the SHO obtained from Patwari endorsed by the Assistant Commissioner , Kot Addu has earlier been declared unsatisfactory vide order of this court dated 21.02.2015 which still holds the field. Same is the position of report dated 27.05.2016 submitted to this court. In these circumstances, the SHO police station Kot Addu and the Assistant Commissioner , Kot Addu are directed to deliver possessions of above said land to complainant through coercive measures otherwise they shall deem this order as show cause notice as to why proceedings for violation of this court's order may not be initiated against them........ "
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2. Precisely , the relevant facts leading to this petition are that the petitioner filed a complaint titled "Ch. Muhammad Aslam v. Mushtaq Ahmad, etc" under section 3/5 of the Illegal Dispossession Act, 2005 (hereinafter to be called as the complainant) against respondents No.12 to 24 in the year 2012 wherein, after recording of cursory evidence, the learned trial court issued process against the proforma accused for facing the trial. The accused filed an application under section 265-K Cr.P.C. seeking their acquittal, before trial court which was dismissed vide order dated 06.05.2014, aggrieved whereof, they filed Writ Petition No.7297/2014 before this Court which had also been dismissed vide order dated 30.05.2014. 3. It is important to note that the petitioner/complainant moved an application under section 7 of Illegal Dispossession Act, 2005 before the learn ed trial court for handing over the possession of the land to him. It was allowed vide order dated 10.01.2015. This order remained unimplemented, resultantly , the complainant filed a Writ Petition No.16587/2015 in which vide order dated 13.05.2016, this Court issued a direction to the learned trial court to implement the order dated 10.01.2015. The complainant pursuant to above order , moved a miscellaneous application before the learned trial court seeking implementation of order dated 10.01.2015 which was accepted vide order dated 31.05.2016 and the SHO, Police Station Kot Addu and Assistant Commissioner , Kot Addu have been directed to deliver the possession of the land to the complainant through coercive measures, hence Crl. Misc. No.14 Q/2016, as mentioned in para-1 of this petition. 4. Learned counsel for the complainant has argued that the impugned order dated 10.01.2015, impleading respondents No.2 to 10 as party in the titled complaint passed by the learned trial court, is nullity in the eyes of law. There exists neither any provision, nor any concept for adding or striking of a party in criminal law. Application seeking impleadment, cannot be entertained for impleading someone as an accused except where on the basis of some material, the court itself consider a particular person to be summoned as an accused. While opposing Crl.Misc.No.14-Q/2016, learned counsel for the complainant submits that since the order dated 13.05.2016 passed in Writ Petition No.16587/2015, has attained finality, therefore, impugned order cannot be challenged, thus the application is not maintainable and prays for its dismissal. 5. Learned counsel for the respondents submits that since the titled complaint is collusive, the matter pertains to possession of the property , therefore, application of the respondents for impleading them has rightly been accepted by the learned trial court in order to avoid any possible prejudice as a result of implementation of order dated 31.05.2016. 6. The arguments advanced by the learned counsel for the parties have been heard and record perused. 7. Till 6 July, 2005 the day on which The Illegal Dispossession Act, 2005 as special law, was promulgated, the persons, without adopting due course of law and illegally dispossessed from their properties could seek certain remedies under ordinary criminal as well as civil law . i) A remedy by way of putting the machinery of law into motion under section 154 Cr.P.C. in case of commission of criminal trespass, house trespass, lurking house trespass, lurking house trespass by night, house breaking and house breaking by night was available to the aggrieved persons. ii) Under the provisions of section 145 Cr.P.C., a Magistrate has been empowered to restore the possession of a person, dispossessed within a period of two months of passing of order by the Magistrate on receiving an information after being satisfied from a police report or other information about the likelihood of breach of peace concerning any land, water or boundaries thereof within the local limits of his jurisdiction, after holding an inquiry, the Magistrate can restore the possession of a party so wrongfully dispossessed by the other party within two months next before the date of passing of his order. He has also been empowered to attach the property. The Magistrate, however, has not been invested with the power to entertain and decide finally the claim of title between the parties. For guidance, in the case law reported in MUHAMMAD SALEEM v. MUNEEZA BEGUM and 6 others (2019 PCr.LJ 364) wherein it is held that, "(b) Criminal Procedure Code (V of 1898)--- ---S. 145---Procedure where dispute concerning land is likely to cause breach of peace---Power to attach subject of dispute---pendency of civil litigation----Scope---Whenever Magistrate was satisfied that dispute likely to cause breach of peace existed regarding any land and considered it a case of emergency, he could attach the subjectth
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and order for its proper custody---Section 145, Cr. P.C. nowhere provided that in presence of civil litigation Magistrate could not exercise his powers conferred on him---Mere filing of suit did not debar the Magistrate to proceed under S. 145, Cr.P.C. unless interim injunction was issued or Receiver was appointed or decree was finally passed, or possession was regulated by the Civil Court. iii) A person illegally and without adopting due course of law dispossessed from his property , has also been provided a remedy by way of filing of a civil suit under section 8 of the Specific Relief Act, 1877 on the basis of title in the manner provided by the Code of Civil Procedure, 1908, subject to law of limitation. iv) Another remedy , by means of a civil suit, was also available to a person dispossessed of his immoveable property , as envisaged under section 9 of the Specific Relief Act, 1877 against the persons causing dispossession. The provisions of Section 9 of Specific Relief Act, 1877 gives a special privilege to persons in possession who takes action primary on their dispossession of immoveable property . Under section 9 of the Act, ibid, summary procedure has been provided, to persons dispossessed from immoveable properties without their consent. It is, for bringing the cause under this Section, it is required to show that the person invok ing the jurisdiction of the Court had actual physical possession of immoveable property from which he was dispossessed without any consent by defendants within six months prior to the institution of the suit. It is not mandatory for the parties claiming retrieval of the possession over the property , who have dispossessed from his possession over the property , to establish his title simply it is sufficient to prove that the pretty claiming retrieval has been dispo ssessed within the period of six months. ................................... ..crime remained an unwanted companion of man throughout history from stone ages to the modern era of information technology .. 8. Hike up in price of real estates, time taking process involving procedural technicalities, rendering the available legal remedies, in public perceptions almost ineffective, the dwindling state superstructure not providing swift measures, the porous and posting seeker bureaucracy pliant before their political masters, gradual decay in value system of society, alarming increase in the illegal public and private land grabbing incidents by the powerful individual and organized groups backed by un-scrupulous elements, ignoring the voice of their conscience, eager to make their fortune, without distinguishing between the right and wrong unfortunately the incidents of illegally occupying the valuable properties owned by weak segments of the society and Pakistani immigrants abroad, gained currency in absence of any deterrent remedial legislation; in this back drop, the legislature felt it expedient to enact The Illegal Dispossession Act, 2005 (hereinafter to be called as the Act) for providing protection to lawful owners and occupants of immoveable properties from their illegal and forcible dispossession therefrom by the property grabbers. The act being a special law has an over riding affect upon prevalent laws. Through the provisions of the Act "everyone" has been prohibited in clear words from entering 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 form the "lawful owner " or "occupier of such property" . For ready reference, it will be advantageous to produce section 3 of Illegal Dispossession Act, 2005:- 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 provision of section 544-A of the Code. (3) Whoever forcibly and wrongfully dispossesses any owner or occupier of any property and his act does not fall within sub-section (1), shall be punished with imprisonment which may extend to three years or with fine or with both, in addition to any other punishment to which he may be liable under any other law for the time being in force. The person dispossessed shall also be compensated in accordance with provisions of section 544-A of the Code.
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9. It will be very important to say that through the enforcement of the Act, a contravention of subsection (1) of Section 3 has been made a punishable offence with imprisonment besides imposition of fine upon the person found guilty of commission of offence under subsection (2)(3) of section 3 ibid. Awarding of compensation has also been made permissible. In the case reported as Captain S.M.Aslam v.The State and 2 others (PLD 2006 Karachi 221 ) wherein it is held that, "Subsection (1) of section 3 forbids any person from entering into or upon any property with the intention to dispossess, grab, control, or occupy any property from its owner or occupier, whereas subsection (2) of section 3 provides that any person who contravenes the provision of subsection (1) of section 3 shall be liable for a punishment of imprisonment which may extend to ten years and with fine and also provide compensation to the victim in accordance with section 544-A of the Code. The punishment provided in subsection (2) of section 3 is beside and without prejudice to any punishment provided under any other law." 10. Any act, without any lawful authority doing so by any person, in contravention of sub-section (1) of Section 3, constitutes an offence under the Act ibid which according to its gravity has been made punishable under sub section 2 and 3 of Section 3 of the Illegal Dispos session Act, 2005. In the case of MUHAMMAD AKRAM and 9 others v. MUHAMMAD YOUSAF and another (2009 SCMR 1066) it is held that, "---S. 3 (1) & (2)---Scope and application of S.3(1)(2) of the Illegal Dispossession Act, 2005----Essentials for Complainant to allege and show before the court and the defence line of the accused enumerated. The Illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabbers and to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants.; The careful examination of the relevant provisions the Act would reveal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum. The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants. The provisions of subsection (1) of section 3 of the Illegal Dispossession Act 2005 are in the form of preventive provisions. The section begins with the words: "no one shall....". This is a prohibitory mandate. There is no restriction as to the class of persons. All persons have been prohibited to commit the offence detailed in this provision, be he male or female. In order to constitute an offence under section 3(1) of the Illegal Dispossession Act 2005, the Complainant is to allege and show before the Court:- (i) That the Complainant is the actual owner (or occupier i.e. in lawful possession) of the immovable property in question. (ii) That the accused has entered into (or upon) the said property . (iii) That the entry of the accused into (or upon) the said property is without an y lawful authority . (iv) That the accused has done so with the intention to dispossess (to grab or to control or to occupy) the Complainant. The provision of section 3(2) is salutary and mandatory . It is with the purpose to alleviate the suffering and is also effective deterrent against crime. The Legislature has taken full care to close all doors of any injustice to the parties. 11. For quite some-time, there remained a debate in the annals of the courts that as to whether the provisions of Illegal Dispossession Act, 2005 can be invoked against the persons holding the credentials of land grabbers and "Qbza Mafia" only, the Hon'ble Supreme Court of Pakistan in its celebrated judgment reported as Mst. Gulshan Bibi and others v. Muhammad Sadiq and others (PLD 2016 SC 769) while removing the confusion, earlier caused through various shades of opinions has held as under:- Legislation-- ----Special law enacted to curb a crime----Scope and applicability---Category of persons who could be prosecuted---Legislature while enacting a special law for awarding punishment for a crime, in its wisdom,
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may or may not describe any particular category of persons who could be prosecuted----Where a special law after making a particular act an offence also described the category of persons who could be prosecuted then unless such person fell within the described category , he could not be prosecuted--- Where the special aw only described the offence or a set of offences and sought to punish any person and every person who was found to have committed the described offence then terms like "anyone", any person "whoever" and "whosoever" were used for the offenders in order to include all offenders without any distinction---In such a case, the offender may belong to any class of offenders, he as an accused could be prosecuted under such law ." Needless to say that through the above ratio, a question of law has been decid ed, which has its binding effect under Article 189 of the Constitution upon all the courts. 12. In the light of arguments advanced by the learned counsel for the parties, the facts and law reiterated hereinabove, the issue seeking its determination, which will also decide the fate of this lis, is WHETHER A CRIMINAL COURT HAS A POWER TO STRIKE OUT OR ADD PARTIES, EITHER IN THE CAPACITY OF COMPLAINANT OR THE ACCUSED, IN PENDING CRIMINAL CASES . In order to examine the legality of the impugned order dated 11.07.2016 and reply the above question, let us first, examine certain relevant provisions of (i) The Illegal Dispossession Act, 2005, (ii) Code of Criminal Procedure, 1898; (iii) Code of Civil Procedure, 1908, (iv) The Punjab Civil Courts Ordinance, 1962 and (v) the relevant provisions of The Constitution of Islamic Republic of Pakistan, 1973. 13. Shorn of verbiage, I firstly propose to decide the legality of impugned order dated 11.07.2016 whereby the trial court, allowed the application of respondents No.2 to 10 for their impleadment as party in the pending complaint, with a direction to the complainant to file amended complaint. It will be appropriate to observe that the Pakistan Penal Code as well as the Code of Criminal Procedure, 1898 were enacted during the days of The British Raj, following Anglo Saxon jurisprudence. As to what, jurisprudence is best may be stated in the words from "Salmond on Jurisprudence": "The distinction between crimes and civil wrongs is roughly that crimes are public wrongs and civil wrongs are private wrongs. As Blackstone says:" Wrongs are divisible into two sorts or species, private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries; the latter are a breach and violation of public rights and duties which affect the whole community considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanours.' A crime then is an act deemed by law to be harmful to society in general, even though its immediate victim is an individual. Murder injures primarily the particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murder and the victim's family. Those who commit such acts are proceeded against by the State in order that, if convicted, they may be punished. Civil wrongs such as breach of contract or trespass to land are deemed only to infringe the rights of the individual wronged and not to injure society in general, and consequently the law leaves it to the victim to sue for compensation in the court." "From a practical standpoint the importance of the distinction lies in the difference in the legal consequences of crimes and civil wrongs. Civil justice is administered according to one set of forms, criminal justice according to another set. Civil justice is administered in one set of courts, criminal justice in a somewhat different set. The outcome of the proceedings, too, is generally different. Civil proceedings, if successful, result in a judgment for damages, or in a judgment for the payment of a debt or (in a penal action) a penalty , or in an injunction or decree of specific restitution or specific performance, or in an order for the delivery of possession of land, or in a decree of divorce, or in an order of mandamus, prohibition, or certiorari, or in a writ of habeas corpus, or in other forms of relief known distinctively as civil. Criminal proceedings, if successful, result in one of a number of punishments, ranging from hanging to a fine, or in a binding over to keep the peace, release upon probation, or other outcome known to belong distinctively to criminal law."
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14. In case of commission of an offence, under Section 3 of Illegal Dispossession Act, 2005, which is public wrong, a remedy by way of filing of a complaint before the court is provided. The court upon a complaint may direct the officer in charge of the police station to investigate the complaint. The offence in this Act (under section 3 of the Act) shall be non-cognizable. The court has been empowered to direct the police to arrest the accused at any stage of the trial. It has manifestly been made clear that "notwithstanding anything contained in the Code or any laws for the time being in force", the offence shall be triable by the court of sessions. To regulate the court proceedings for holding trial of an accused, it has been provided under section 9 of the Act that "unless otherwise provided in this Act," the provisions of the Code of Criminal Procedure 1898 (Act V of 1898) shall be applicable. Needless to say, the Illegal Dispossession Act is a special law, having overriding effect upon other laws. Under the provisions of Section 2, certain terms which are relevant have been defined as under:- (a) "Court" means the Court of Session; (b) "Code" means the Code of Criminal Procedure, 1898 (Act V of 1898); For ready reference, the provision of section 9 of the Illegal Dispossession Act, 2005 is also reproduced hereunder:- 9. Application of Code.---Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (V of 1898)_, shall apply to proceedings under this Act. 15. In the light of above discussion, legal position emerges that besides the special provisions contained in the Act ibid, the provision of "Code of Criminal Procedure" are applicable for holding a trial of an offence under this Act before the Court. In order to further elucid ate the issue under discussion, a necessity has arisen to examine certain provision of Code of Criminal Procedure. Let's now examine the preamble of the Code of Criminal Procedure to know the purpose behind its promulgation which says that it is an act to consolidate and amend the law relating to criminal procedure. Prior to enactment and promulgation of this Code, there existed no uniform procedural law for regulating the proceeding before criminal courts during the colonial era. The scheme behind the criminal procedure code is to streamline, channelize and facilitate the smooth running of system of criminal justice. THE OBJECT IS TO PROVIDE A MACHINAR Y FOR PUNISHMENT OF OFFENDERS AGAINST THE SUBST ATIVE CRIMINAL LAW UNDER THE CODE. 16. I have found that under section 2(a) of the Illegal Dispossession Act, 2005 the Court has been defined, as the court of sessions. About the constitution of courts, it mention in Chapter II, Part-II as under: Section 6. Classes of Criminal Courts Magistrates. (1) Besides the High Courts and the Courts constituted under any law other than this Code for the time being in force, there shall be two classes of Criminal Courts in Pakistan, namely: (i) Courts of Sessions; (ii) Courts of Magistrates. Section 9 of the Code speaks that the Provincial Government shall establish a Court of Sessions for every sessions division, and appoint a judge of such Court. Under subsection (3) of this section, the Provincial Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts. It evinces that the criminal courts are constituted under the above referred provisions of Cr.P.C. A description of offences triable by each court, constituted, under the above referred provision has been given (under section 28 and 29 of the Code, of Chapter III). According to section 28 subject to the other provision of the Code, any offence under the Pakistan Penal Code may be tried (a) by the High Court or (b) by the court of sessions or (c) by any other court by which such offence is shown in the eighth column of II schedule to be triable. For the offences under other laws, section 29 of the Code provides as under :- Subsection (1) 29 (1) subject to other provision of this Code, any…
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