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Petitioner: MUMTAZ HUSSAIN VS Respondent: Dr. NASIR KHAN and others
Court Name: Supreme Court of Pakistan Judge(s): Khilji Arif Hussain, Rehmat Hussain Jaffery, Anwar Zaheer Jamali Title: MUMTAZ HUSSAIN vs Dr. NASIR KHAN and others Case No.: Criminal Appeal No,423 of 2008 Date of Judgment:2009-12-02 Reported As: 2010 SCMR 1254 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J.---On 28-11-2008, this Court granted leave to appeal to consider the following questions:-- "(i) whether a Court exercising jurisdiction under the Illegal Dispossession Act, 2005 is empowered to examine the question of title as to property or whether its jurisdiction is premised only upon the Act of illegal dispossession of the person in possession; and (ii) Whether a complaint under `the Act can only be filed against land grabbers and a person claiming bona fide title of the property is not amenable to the jurisdiction of the Court under the Act despite having dispossessed an occupant forcibly and without following the due process of law?" 2. Brief facts, out of which the present appeal has arisen, are that on 14-7-2007, the appellant filed an application under section 4 of Illegal Dispossession Act, 2005 (hereinafter referred to as `the Act') claiming to be the owner along with his wife in respect of plot bearing Nos.B-29 and B-30, measuring 135 Sq. Yards, Survey No,83 situated in Kehkashan Housing Project, Deh. Digh, Tapo MAlir, Taluka and District Karachi East (hereinafter referred to as 'the property'). It was alleged that, on 23- 7-2007 respondents Nos.1 and 2 dispossessed the appellant and his family from the property, therefore, he prayed for taking Action against them. The respondents contested the case by filing detailed reply claiming to be the owner of the property and denied the allegation of dispossession by them. A perusal of the record reveals that before the filing of application under section 4 of the Act, there was civil litigation between the parties in which their titles were questioned and status quo order was passed by the Court, as such it is an admitted fact that during the pendency of civil
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litigation, the present proceedings were filed. Keeping in view the background, this Court granted leave to appeal to consider the questions reproduced hereinabove. 3. As important questions were involved, therefore, we issued notice to Messrs Anwar Mansoor Khan and Abid S. Suberi, learned Advocate Supreme Courts, to assist the Court as amici curiae. In pursuance of said notice, Mr. Zuberi appeared but Mr. Mansoor could not appear because of his professional engagements at the principal seat of this Court, as informed. Therefore, we have heard Mr. Shahadat Awan learned Prosecutor General, Sindh and Mr. Abid S. Zuberi, learned amici curiae and perused the relevant record of the case as well iclevant provisions of the law on the subject. 4. The learned Prosecutor General has stated that the Act is applicable, if the dispossession is made by Qabza group or property grabbers as is clear from the preamble of the Act and that the Act is not applicable to other persons. He has relied upon "Zahoor Ahmed v. State PLD 2007 Lah.231 and Noor Zada v. Muhammad KhAlid 2007 P.Cr.LJ 891. He has further argued that Criminal Court is not competent to decide the question of title. Conversely, Mr. Zuberi, learned amicus curiae, has stated that the preamble of the Act would not govern the Act itself, if the provisions of the Act are clear and unambiguous; that the preamble can be taken into consideration in aid to interpret the ambiguous provisions of the Act; that in the present case the provisions of the Act themselves would govern and not the preamble. On this proposition, he has relied upon A.G. v. H.R.H. Prince Augustus 1957-1 all England Law Reporters page 49, Pakistan Railway v. Abdul Haqique 1991 SCMR 657 and Shaukat Baig v. Shahid Jamil PLD 2005 SC 530. He has further argued that in the preamble the words "property grabbers" have been used but the said words are missing from section 3 of the Act, therefore, the scope mentioned in the preamble of the Act has been extended through section 3 in which the words "no one" and "whoever" appearing in subsections 1 and 2, respectively, are very significant, which are wider in scope than the words "property grabber". Based on these provisions, he has argued that the Act would be applicable to all persons, whoever comes within the ambit of section 3 of the Act. He has further contended that the Criminal Court is not competent to decide the title of the property, but it is required to form a tentative opinion for the purpose of ascertaining as to whether the complainant was in lawful possession of the property and beyond that it cannot give any finding qua the title, as it is within the jurisdiction of Civil Courts to do so, therefore, for limited purpose the criminal Court can go into this question, as is being done in the cases falling within the provisions of section 145 of the Code of Criminal Procedure hereinafter referred to as 'the Code'. 5. Before entering into discussion, we would like to examine the case-law on the subject. A Full Bench of Lahore High Court in the case of Zahoor Ahmad (supra) after examining the "Heading" and "Preamble" of the Act observed that the Act would be applicable to illegal dispossession from immovable property only ,by the property grabbers/Qabza group/Land Mafia. In this authority, the relevant provisions of section 3 of the Act were not considered at all. As such, it is based on mere interpretation of "Heading" and "Preamble" of the Act. In the case of Noor Zada (supra), a single Bench of Lahore High Court made a passing remark that the said Act would apply to dispossession of property by property grabbers or Qabza group. However, no discussion whatsoever has been made, while arriving at the above conclusion. This Court in the case of Rahim Tahir v. Ahmed Jan PLD 2007 SC 423 (a two members' Bench) observed, "that expressions 'grab, control or occupy' used in section 3 of the Act cannot be restricted to the illegal occupants who entered in the premises subsequent to the promulgation of the Act rather all cases of illegal and unauthorized occupants would be subject to the Illegal Dispossession Act, 2005, except the cases which were pending adjudication before other forums." This judgment was considered by this Court by a Bench of three members in the case of "Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404 and it was observed that it did not lay down as the correct law to the extent of retrospective application
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of the Act. Except the above portion of the judgment, the findings arrived at by the earlier two members' Bench were not disturbed by this Larger Bench. Again in the case of Muhammad Akram v. Muhammad Yousaf 2009 SCMR 1066, section 3 of the Act was subjected to interpretation and it was observed that the careful examination of the relevant provisions of the Act would reveal that all cases of illegal occupants without any distinction would be governed by the Act, except the cases which were already pending before any other forum. In this authority, the observations of this Court in the case of Rahim Tahir (supra) were confirmed, except the retrospective operation of the Act. 6. From the examination of above case-law, so far produced before us, the position is that the Act has no retrospective operation whereas all the cases of illegal occupants, including property grabbers/Qabza group, without any distinction would be governed by the Act, except the cases which are already pending before other forums. 7. Keeping in view the above position of law, we have examined the contentions of the learned counsel and found great force in the arguments of Mr. Zuberi to the effect that the preamble of an enactment would not govern the provisions of the Act, if they are unambiguous and clear in terms, which is supported by the above-mentioned authorities. It will be advantageous to produce para 12 from the case of Shaukat Baig (supra), which reads as under:-- "The significance and importance of the preamble has been examined on various occasions and the judicial consensus seems to be that "a preamble is a legitimate aid in discovering the purpose of a statute. The preamble of a statute has been said to be a good means of finding out its meaning and intent and, as it were, a key to the understanding of it. The study of preamble to a piece of legislation provides a clue to arrive at the intention of the law-maker. From apart the preamble as a key to find out the intention of the legislature the history of the legislation can also be looked into. The Court may properly be referred what is generally known as contemporaneous circumstances. Such circumstances include the history of the time existing when the law was enacted, the previous state of law, the evil intended to be corrected, the general policy of State or the established policy of the Legislature can also be considered. It can be referred to in certain cases to ascertain the intention of the Legislature. It affords, in a case where the language of the enactment is not clear, "a key to the construction of the Statute" and can, therefore, be referred to for the purpose of finding out the object and the intention of the enactment. If, however, there is an inconsistency or conflict in the plain meaning of the Act and the Preamble, latter has to give in and the statute is to be construed According to its plain meaning. A preamble sheds useful light as to what a statute is intended to achieve or remedy, it is true that the preamble cannot control, restrict, extend or otherwise add to or detrAct from a substantive provision of the statute, where it is expressed in clear unambiguous language. But there is weighty judicial authority in which preamble has been referred to, with advantage as an aid to the construction of the main provision of statutes. Preamble has long been accepted, at any rate, since the middle of the 19th Century, "as a legitimate aid to construction". There is a long array of authorities bearing on the point. In all these cases the broad principle was accepted that preamble is the key to a statute and affords a clue to its scope, particularly where the words construed by them are fairly capable of more than one construction. An interpretation, which is more in consonance with the avowed policy underlying the Act as decipherable from its title and preamble, is to be preferred to an interpretation, which is at tangent with its object. The preamble, however, cannot either restrict or extend the enacting parts when the language is not open to doubt. Rights whether public or private are not to be taken away or even hampered by mere implications from the language in the absence of express words used in the statute. It does not affect unambiguous provision of statute. It may be, that sometimes, is permissible to have recourse to the preamble, however, it has not the same weight as the enacting provision themselves, it is only in exceptional cases where the
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enacting provisions are equivocal that the Courts sometimes refer to the preamble as an aid to finding out the true legislative intendment which the draftsman has failed to demonstrate. Though the preamble may be considered to be a key to the Act itself, it cannot normally be applied to explain the Act except where the provisions contained in its body are otherwise vague. Where the language of the section is clear; the preamble cannot control its provisions. It will not qualify enactment which in itself is clear and unambiguous. The preamble cannot either restrict or extend the enacting part, when the language and the object and scope of the Act are not open to doubt. In short the general rule is that the express provision of an enactment, if it is clear and unambiguous, cannot be curtailed or extended with the aid of the preamble, but when the object or meaning of certain provision is not clear then it is perfectly legitimate to have recourse to the preamble to explain it. The preamble of the statute has been said to be a good means of finding out its meaning, and, as it were a key to the understanding of it. Of course it does not mean that if there are express provisions in the Act which go beyond what has been briefly stated in the preamble the express provision will not prevail. But the provision of the Act has to be read in conjunction with the preamble in order to arrive at a finding as to what was the purpose of the legislation." PLD 1986 Journal 93, PLD 1981 FSC 23, PLD 1966 BJ 30, PLD 1969 Lah.563, PLD 1972 Kar. 421, PLD 1969 Lah.908, PLD 1952 Dacca 272, PLD 1962 Lah.990, PLD 1975 SC 1, PLD 1950 Pesh.22, PLD 1953 Sindh.15, PLD 1952 Dacca 425, PLD 1958 Pesh.73, PLD 1966 Dacca 1." 8. Following the above rule, we hold that the preamble of the Act would not govern the provisions of the Act, if they are unambiguous and clear but it can be taken into consideration in discovering the purpose of statute and aid can be taken in interpreting the provisions of the Act, if they are ambiguous. 9. In the present case, "Heading" and "Preamble" of the Act only use the words "property grabbers". These words have neither been defined in definition clause of the Act nor used in any part of it. Instead thereof section 3, which defines the offence under the Act uses the words "no one" in subsection 1 and "whoever" in subsection 2. These two phrases are of wide import, which will apply to all persons including property grabbers, Qabza group or land mafia. For advantageous purposes, section 3 is reproduced as under:-- "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 others 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 without 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." 10. This Court has already examined this question in the case of Muhammad Akram (supra) and observed as under:-- "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: "on one shall...This is a prohibitory mandate. There is no restriction as to the class of person. All persons have been prohibited to commit the offence detailed in this provision, be he male or female." ' The Concise Oxford Dictionary defines the words "no one" as no person; nobody and "whoever" as any person or persons. Thus section 3 of the Act is very clear and unambiguous and its scope is wide enough to cover the class of persons mentioned in the preamble. Therefore, the preamble of the Act cannot restrict its meaning as such the Act would be applicable to dispossession of a person from the property by any person including property grabber, Qabza group or land mafia.
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11. Now the next question is in respect of the examination of title of the parties. It is pointed out that it is the sole function of the Civil Court to give authoritative decision with regard to title of the property and the Criminal Court is not competent to give any finding qua title of the property. In such like cases, Criminal Court is simply required to examine the material available before it to form an opinion as to whether a prima facie case is made out for holding that the person who has complained about his dispossession was in lawful possession or owner because the words used in section 3 of the Act are "owner" and "occupier" of the property. The word occupier has been defined in section 2(c) of the Act viz. "occupier" means the person who is in lawful possession of a property; the word owner is defined in section 2(d) of the Act viz. "owner" means the person who Actually owns the property at the time of his dispossession, otherwise than through a process of law; and the word property has been defined in section 2(e) of the Act, as "property" means immovable property. Thus for the purpose of attracting the provisions of section 3 of the Act, the Court is required to examine as to whether the property was an immovable property; secondly that the person was owner of the property or in its lawful possession. Thirdly, that the accused has entered into or upon the property unlawfully. Frothly, that such entry is with intention to dispossess i,e, ouster, evict or deriving out of possession against the will of the person in Actual possession, or to grab i,e, capture, seize suddenly, take greedily or unfairly, or to control i,e, to exercise power or influence over, regulate or governor relates to authority over what is not in one's physical possession (Ref. Merritt's Estate, 46 N.Y.S.2d 497, 505) or to occupy i,e, holding possession, reside in or something. The definitions of above words have been drawn from Black's Law Dictionary and Concise Oxford Dictionary. Though all the four words carry somewhat similar meaning in general, but individually applicable to different situations, times, places and circumstances, therefore, they cannot be given one and same meaning as by doing that one or more words become redundant, which cannot be attributed to the Legislature. 12. For the purpose of examining the question of title in respect of the property, as already pointed out, the Court has to simply form an opinion as to whether prima facie any party is coming within the ambit of definition mentioned in section 3 of the Act and if the Court forms such opinion from the material placed before it, then the Court can proceed with the matter or otherwise, as the case may be. The similar procedure is being adopted by Magistrate, while exercising powers conferred upon him under section 145 of the Code, which is normally required to be adopted in these proceedings. In the case of Shah Muhammad v. Haq Nawaz PLD 1970 SC 470, it has been observed at page 481 as under:- "The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning 'land' or 'water'. These proceedings though concerning the subject-matter of dispute between the contending parties, do not concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a Civil Court." At page 482 it has been further observed as under:-- "In such a case a 'dispute' may well arise as to possession and attract the jurisdiction of a Magistrate under section 145 of the Criminal Procedure Code. Cases in which a perpetual or temporary injunction has been issued restraining the defendant from interfering with the possession of the plaintiff stand, whoever on a different footing. A dispute as stated in the Calcutta Full Bench case means an Actual disagreement. There can be a disagreement only if either party can ostensibly lay claim to possession of the subject-matter of the dispute. But, if the rights of the parties have already been finally determined and possession has been delivered to the plaintiff in execution of the decree or permanent injunction has been granted in his favour restraining the defendant from interfering with his possession, there is then no scope of or any Actual disagreement between the parties concerning possession of the subject-matter of the suit The
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conclusion, we have reached thus, is that a case in which a civil court is already seized with the subject-matter of dispute and has passed an order regulating possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite-party from interfering with the possession of the decree-holder fall outside the jurisdiction of a Magistrate under section 145, Cr.P.C." 13. In the present type proceedings, the question required to be resolved is the possession and dispossession etc. Within the meaning of section 3 of the Act, as the parties have not, nor can come for adjudication of their title in the property. 14. As regards retrospective operation of the Act, this Court in the case of Rahim Tahir (supra) after examining section 3 of the Act at page 426 has observed as under:-- "There is no cavil to the legal position that Illegal Dispossession Act, 2005 having no retrospective effect, may not be applicable to the cases of unauthorized occupants pending before any other forum on the date of promulgation of the above Act but if the case of an illegal occupant was not already pending before any other forum on the date of enforcement of this Act, the same would squarely fall within the ambit of this Act. The expressions "grab, control or occupy" used in section 3 of the Act cannot be restricted to the illegal occupants who entered in the illegal and unauthorized occupants would be subject to the Illegal Dispossession Act, 2005, except the cases which were pending adjudication before other forums." ' The above authority was examined by this Court in the case of Muhammad Safdar (supra) wherein at page 405 it has been observed as under:-- "The reference to the case of Rahim Tahir (supra) was in-apt as it did not lay down the correct law to the extent of retrospective application of the Act, 2005. The making of a law providing for retrospective punishment of a person is specifically prohibited by Article 12 of the Constitution of the Islamic Republic of Pakistan. There is nothing to indicate that the Act of 2005 was intended to have any retrospective operation." ' In both the above cases, it has specifically been mentioned that the Act has no retrospective effect. While making observation on the case of Rahim Tahir (supra), this Court in the subsequent decision viz. Muhammad Safdar simply made the above mentioned observation without making any discussion on the subject and also without making any reference to the expressions "grab, control or occupy" appearing in section 3 of the Act. It is pointed out that the definition of word "control" has already been given in the earlier part of the judgment, which inter Alia means "relates to authority over what is not in one's physical possession". The word "occupy" has been defined in the case of People v. Wilkinson 56 Cal. Rptr. 261, 264, 246 C.a. 2d. Supp.906, as "within statute making it misdemeanor to wilfully commit trespass by entering and occupying realty or structures without consent means non transient, continuous type of possession". It also means holding possession as mentioned hereinabove. Thus the meaning of these words clearly demonstrate that if anybody controls or holds unlawful or illegal possession of the property at the time of enactment then he would come within the ambit of the Act. Therefore, a complaint can validly be filed against such person by the occupier or owner of the property. Thus if the Act of the accused comes within the meaning of any of the words viz. Dispossess, grab, control or occupy on the date when the Act was promulgated then an Action can be initiated as provided under section 4 of the Act. 15. As regards article 12 of the Constitution of Islamic Republic of Pakistan, 1973, it does not deprive the Legislature of its powers to give retrospective effect to an enactment which the Legislature is competent to enact. It merely provides that no law shall authorize the punishment of a person for an Act or omission that was not punishable by law at the time of the Act or omission or for an offence by penalty greater than or of a kind different from the penalty prescribed by and for that offence at the time the offence was committed. Reference is invited to the case of Khan Asfandyar WAli v. Federation of Pakistan PLD 2001 SC 607.
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16. It is important to note that the Act of entering into or upon the property for dispossessing another person with intent to commit an offence or to intimidate or insult or annoy any person possessed of such property or having lawfully entered into or upon such property, unlawfully remains there with the above intention then such Act is coming within the definition of criminal trespass as defined in section 441 of Pakistan Penal Code and punishable under section 447 of the said Act. Thus the Act of dispossession as provided under section 441, P.P.C. Is already an offence. However, the offence as provided under section 3 of the Act appears to be an aggravated form of the offence under section 441, P.P.C., therefore, it cannot be said that the Act of dispossession is a new offence under the Act. 17. As the question of title of the property is already pending before the competent Court of civil…
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