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Petitioner: SHAHABUDDIN VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Shahid Anwar Bajwa Title: SHAHABUDDIN vs THE STATE Case No.: Criminal Appeal No,224 of 2009 Date of Judgment:2009-12-22 Reported As: 2010 P Cr. L J 422 Result: Sentence reduced
JUDGMENT
JUDGMENT ' SHAHID ANWAR BAJWA, J.--- A complaint was filed by Muhammad Iqbal against the present appellant under sections 3 and 4 of the Illegal Dispossession Act, 2005. It was alleged in the complaint that complainant purchased property bearing Plot No,A-288, Sector 6-H, Korangi Township, Korangi, Karachi, measuring 240 sq.Yards. It was further stated in the complaint that plot had been in possession bf the complainant since 2004 and the complainant had purchased from original allottee through his duly constituted attorney and plot was correspondingly transferred in his name by the City District Government, Karachi vide letter dated 14-6-2004. Complainant further stated that he used to visit and look after his plot. However he went out of Karachi for four months and when he came back to Karachi and went to visit site of the plot on Marth 1, 2006, he was astonished to find that a boundary wall had been erected around his plot and construction was going on. The complainant enquired from the area and was informed that Mr. Shahabuddin, the present appellant, had trespassed on his plot. Complainant contacted Shahabuddin. He in turn asked him to contact Choudhry Yacloob. On enquiry, the complainant stated, he found Choudhry Yaqoob was a leader of land grabbers in the area. Complainant prayed for the Court to take cognizance of the offence committed by the present appellant under section 3(1) and (2) pf the Illegal Dispossession Act, 2005. 2. The Court below directed S.H.O. Police Station Korangi, who in terms deputed S.I.P. Shamsuddin Dahri to conduct investigation. After completing his enquiry, Mr. Dahri submitted his report on 24-4- 2006 and he came to the conclusion that documents in possession of the present appellant in respect of his claim in respect of the plot were forged and fabricated. Thereafter trial Court took cognizance of the matter. Evidence was recorded and vide judgment dated October 12, 2009, the
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trial Court convicted present appellant for offence punishable under section 3(2) of the Illegal Dispossession Act, 2005 and sentenced him to suffer Rigorous Imprisonment of 10 years and to pay fine of Rs,50,000 and in case of default in payment of fine, to suffer further Rigorous Imprisonment of three months. He was also directed to pay Rs,50,000 as compensation to the complainant in view of provisions of section 544 of the Criminal Procedure Code. Possession of the plot, which had already been attached, was ordered to be handed over to the complainant. Being aggrieved by that order this appeal was filed. 3. Learned counsel for the appellant made the following submissions:--- (1) Learned counsel referred to preamble of the Act of 2005 and submitted that the Act covers cases of property grabbers and not civil disputes of ownership between two persons. (2) That complainant was never in possession of the plot, therefore, there could not have been any question of dispossessing him. ' That under section 9 of the Illegal Dispossession Act, 2005, the provisions of Criminal Procedure Code are applicable to the proceedings under the Act of 2005 subject, however, to any specific provisions made in the Act of 2005. Learned counsel submitted that under section 200, Cr.P.C., the first requirement is that statement of the complainant be recorded at once. His submission was That without recording that statement the Court to which the complaint is made cannot proceed for any further steps to take cognizance of the offence. In this regard he relied upon Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231, Abdul Majid v. MD. Mansur Ali and 14 others 1969 PCr.L.I692, Captain S.M. Aslam v.. The State and 2 others PLD 2006 Kar.. 221, Shamim v. The State and Muhammad Bashir PLD 1966 SC 178, Roshan Ali v. Amir Bux and another PLD 2002 Kar.115. (4) That unless the Magistrate decides to take cognizance he cannot ask police for enquiry or any other efforts. In this regard he relied upon Najam Sethi, Editor-in-Chief "AAJ KAL" v. 1. Kari Shamim Ahmed Anjum, Senior Member, Zili Aman Committee, 2. Pervaiz Iqbal Butt MIC, Faisalabad 2003 YLR 533. (5) That there is no evidence of any physical force for dispossessing and no evidence of any neighbour has been recorded that complainant was ever living there. (6) That the Court below has not discussed evidence of the appellant/accused particularly it has not taken into consideration sale-deed which was duly registered. (7) That while recording statement under section 342, Cr.P.C. No question regarding documents produced by the complainant was asked from the accused/appellant. (8) That the Court below hai held that property documents submitted by the appellant were forged merely on the basis of statement by Investigating Officer. 4. Mr. Aman Khattak, Advocate for the complainant made the following submissions:--- (1) That Illegal Dispossession Act, 2005 is a special statute. He referred to section 9 and then went to section 5 of the Act and contended that section 5 of the Act gives special powers to the Court and therefore there is no requirement that statement under section 200, Cr.P.C. Be recorded before dealing with the case under the Illegal Dispossession Act, 2005. He relied upon Sahib Khan v. Saadullah Khan and another PLD 2008 Pesh. 49. (2) That appellant participated in police investigations and raised no objection on non-recording of statement under section 200, Cr.P.C. In any case the appellant has not been able to point out as to what prejudice, if any, has been caused to him by non-recording of the statement. In this regard he relied upon Shamim v. The State and Muhammad Bashir PLD 1966 SC 178. (3) That since appellant claimed to be owner of the property he had to prove such ownership because he contended that he purchased it from Choudhry Yacioob. (4) That Civil Suit No,59 of 2007 was filed by the appellant after the complaint had been made. Learned counsel relied upon Rahim Tahir v. Ahmed Jan and 2 ethers PLD 2007 SC 423 and
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distinguished the case reported at PLD 2007 Lah. 231, stating that the latter was a case between two real brothers. He further relied upon Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others, Wald Muhammad v. Additional Sessions Judge, Jaranwala, District Faisalabad and 5 others PLD 2008 Lah. 392, Sharmila Farooqui v. The State 2009 MLD 850, Maqsood Ahmed Qureshi v. Muhammad Azam Ali Siddique and 8 others PLD 2009 Kar.65. (5) That a valid and well speaking order was passed by the trial Court under section 5(1) of the Illegal. Dispossession Act, 2005 before taking cognizance of the matter. (6) That there has been misreading or non-reading of the evidence. 5. Learned A.P.G, on the question of lack of recording of statement under section 200, Cr.P.C., supported contentions of Advocate for the appellant as also on the question of non-asking question regarding documents while recording statement under section 342, Cr.P.C. However on merits, he supported case of the complainant and stated that said Choudhry Yaqoob and Sajjad from whom and through whom the appellant had stated he purchased property had not been produced in evidence. 6. While exercising his right of reply, learned counsel for the appellant stated that provisions contained under section 200, Cr.P.C. Are not in derogation of section 5 of the Illegal Dispossession Act, 2005. -- 7. I have considered the submissions made by the learned counsel. I have gone through the record and proceeding of the Court below and the case-law cited by the learned counsel. 8. First contention of the learned counsel was that the learned counsel referred to preamble of the Act of 2005 and submitted that the Act covers cases of property grabbers and not civil disputes of ownership between two persons. Preamble of the Act of 2005 is in the following hereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal and forcible dispossession therefrom by the property grabbers. 9. Contention of the learned counsel for the appellant was that the Act covers cases of professional property grabbers and not cases of individual disputes. He relied upon Zahoor Ahmad's case (supra) which is a case decided by a full bench of Lahore High Court. The High Court held that the Act of 2005 was not the finest example of legislative draftsmanship and made recommendations to the Federal Law Ministry to consider amendments in view of points stated in the judgment, it referred to the preamble and held as under:- "After enactment of the Illegal Dispossession Act, 2005 , it has been noticed that although this. Act was restricted in its scope and applicability to Illegal Dispossession from immovable properties only by a particular class of persons who could qualify as property grabbers/Qabza Groups/land mafia yet the said Act is now being invoked and utilized by all kinds of aggrieved persons in all kinds of cases of dispossession from immovable properties even by individuals who have no credentials or antecedents of being property grabbers or being members of a Qabza Group or land mafia. Such abuse and wrong utilization of the Illegal Dispossession Act, 2005 has been found to be completely nugatory to its contents as well as objectives. It has appeared that through a mistaken or deliberate misuse of the Illegal Dispossession Act, 2005 the legal remedies already occupying the field against run of the mill and ordinary dispossession from immovable properties have been dispossessed of the field and that surely was not the intent or spirit of the Illegal Dispossession Act, 2005." 10. Next question is whether in proceedings under the Illegal Dispossession Act, when a complaint is received by the Court of Session, it is a requirement of law that as a first step statement of the complainant under section 200, Cr.P.C. Be recorded or whether this is not a mandatory requirement in respect of complaints under the Illegal Dispossession Act, 2005: Since reference has been made to section 5 and section 9 Illegal Dispossession Act, as well as section 200, Cr.P.C. It would be relevant to reproduce the three provisions:---
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"5. Investigation and procedure.--- Upon a complaint the Court may direct the Officer-in-charge of a Police Station to investigate and complete the investigation and forward the same within fifteen days to the Court: Provided the Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this subsection. (2) On taking cognizance of a case, the Court shall proceed within the trial from day to day and shall decide the case within sixty days_ and for any delay sufficient reasons shall be recorded. (3) The Court shall not adjourn the trial for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days." "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." "Section 200 Criminal Procedure Code.--- A 'Magistrate taking cognizance of an offence on complaint shall at once examine the complainant on oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant, and also by the Magistrate. 11. It is contention of the learned counsel for the appellant that recording of statement under section 200, Cr.P.C. Is vital and essential for proceeding further and if such statement is not recorded it would be fatal to the complainant. On this- point he has been supported by the learned A.P.G. Also. On the other hand, learned counsel for the complainant strenuously argued that in proceedings under the Illegal Dispossession Act, it is not a requirement of law that upon receipt of complaint the first step be for the Court to record statement wider section 200, Cr.P.C. And even if the Court does not record such statement at all the trial would not stand vitiated by such omission. Learned counsel for the appellant relied upon a number of cases. 12. In Abdul Majid's case it was held that an inquiry cannot be directed under section 200, Cr.P.C. Before the Magistrate takes cognizance of an offence and examine the complainant on oath. It was therefore held that order of judicial inquiry without examining the complainant on oath would be contrary to law and as a result proceedings of judicial inquiry and order of dismissal passed thereon were held to be void and of no legal effect. 13. S.M. Aslam's case (supra) was decided by a single Judge of this Court, and the case was under the Illegal Dispossession Act. Complaint under section 3(2) of the Illegal Dispossession Act, 2005 was dismissed without examining the complainant on oath. Contention of the learned counsel for the complainant in the High Court was that without examining the complainant on oath under section 200, Cr.P.C. Dismissal of the complaint was a flagrant violation of the provisions of 200, Cr.P.C. The Court while observing that recording of statement of complainant on oath is condition precedent for taking cognizance of an offence. However the Court held that Court can dismiss a complaint even without recording statement of complainant on oath. The precise question of law raised in this case was not directly under consideration of the Court in S.M. Aslam's case. What was being considered was whether complaint can be dismissed without-recording statement under section 200, Cr.P.C. And the Court answered it in affirmative. 14. In Roshan All's case (supra) it was also observed that the Court should not lightly accept written complaint and should not proceed to issue process until 'it had fully sifted allegations made against the accused and was satisfied that prima facie a case had been made out against those who were accused of the criminal offences. Since this case pertained to period prior to promulgation of Illegal Dispossession Act, it is not really relevant because precise question now being raised was (as it could not have been) not under consideration in that case. In Najam Sethi's case (supra) it was held that the procedure prescribed by section 200, Cr.P.C. Is mandatory and since this had not been followed proceedings pending against the petitioner were ill founded and must be quashed.
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15. On the other hand, learned counsel for the complainant relied upon Sahib Khan v. Saadullah Khan PLD 2008 Pesh. 49. Question being considered by the Court was stated in para 5 in the following words:--- "(5) The grounds of revision petition contain objection that once the accusal respondents were summoned under section 204 of Cr.P.C., the trial Court had no jurisdiction to dismiss the complaint under section 203, Cr.P.C." And thereafter in para 8 decision was recorded as under:-- "(8) Thereafter, I shall also refer to section 5 of the Act. The procedure in section 5(1) of the. Act is special procedure which empowers the Court to get conducted the special investigation, within the stipulated period of fifteen days. After receipt of the investigation report, the Court shall obviously apply its mind to further proceed with the matter under section 5(2) of the Act or not. If this application of mind is excluded from the powers of trial Court, the purpose of investigation under section 5(1) of the Act would become meaningless and the process under section 5(1) of the Act would become a mechanical exercise directly conflicting with fundamental object of the Act, i.e. Speedy disposal of disputes falling in its ambit. It being so, and holding that the trial Court has powers to apply mind after receipt of investigation report under section 5(1) of the Act to further proceed with the trial under section 5(2) of the Act, the consequential power of the Court also flows out, either to hold the complaint maintainable or not, which shall have to be deemed vested in the trial Court under the Act." 16. Reference was also made to Shamim's case (supra). In this case the honourable Supreme Court observed that "one of the main objects of section 200, Cr.P.C. Was to protect the public against false, frivolous or vexatious complaints filed against them in Criminal Courts and the Magistrate must not lightly accept written complaint and should not proceed to issue process until he had fully sifted the allegations made against the accused and was satisfied that prima facie the case had been made out against those who were accused of criminal offences". It was further noticed that Judicial Commissioner Quetta had not expressed any opinion in his judgment as to whether failure to follow the provisions contained in section 200, Cr.P.C. Would involve any incurable illegality. Thereafter the Honourable Supreme Court in ringing authoritative words laid down the law as under:--- "It may be observed that the language of section 200 of the Code of Criminal Procedure does not lead to the inevitable inference that the examination of a complainant is a sine qua non of valid proceedings, in all circumstances. In a case where the complaint has been made by a Court or by a public servant this section expressly declares that there need be no examination of the complainant before issuing process. There is no provision in the Code to the effect that a failure to follow the provisions of section 200 in respect of examination of the complainant entails invalidation of the proceedings taken. The history of this section apparently bears out the contention raised on behalf of the State that the defect amounts to a mere irregularity and apart from the question of prejudice, would be insufficient to vitiate the proceedings. In the Code of Criminal Procedure, Act X of 1872, express provision was made in the last clause of section 144, to the effect that where the complaint has been made by petitioner and the Magistrate neglects to examine the complainant, the trial of the person accused, shall not be set aside on this ground. This provision was omitted from the Code of 1898, in view of the provisions contained in section 537 of the Code, which serve the same purpose in more general terms. The explanation to that section says that in determining whether any error, omission or irregularity in any proceeding under this Code had occasioned failure of justice, the Court shall have regard to the fact whether the objection could or should have been raised at an earlier stage in the proceedings." 17. An examination of provisions of the Act may be relevant at this stage. Section 9 lays down that unless otherwise provided in the Act of 2005 provisions of the Criminal Procedure Code shall apply
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to proceedings under the Act. That means that if specific provision has been in the Illegal Dispossession Act that provision shall have effect of overriding the provision contained in the Criminal Procedure Code. The provisions in respect of procedure and investigation exist in section 5 of the Act of 2005. The opening words subsection (1) are "upon a complaint the Court may direct the Officer Incharge of the Police Station to investigate". What is to be noticed that the words used are "upon a complaint" and "may". That means discretion has been given to the Court to entrust or not to entrust investigation to an Officer Incharge of Police Station. Moreover that can be done "upon a complaint". No other pre-requisite: just upon a complaint; without any further ado. Then subsection (2) says that on taking cognizance of a case. That is very important we may contrast it with the provisions of section 200, Cr.P.C. Section 200, Cr.P.C. Says that the Magistrate taking cognizance of an offence on a complaint shall at once. In section 200, Cr.P.C. The word cognizance occurs before the requirement of examining the complainant on oath is specified whereas in section 5 of the Illegal Dispossession Act, subsection (1) gives discretion to entrust inquiry to police and then subsection (2) talks of cognizance and after talking of the cognizance it says that Court shall proceed with the trial on day to day basis. To my mind the conclusion is obvious: Under Section 5, the Court may institute inquiry before taking cognizance of the offence and under section 200, Cr.P.C. Court taking cognizance of the offence is required to record statement on oath. Under Cr.P.C. Statement on oath follows cognizance and under the Act of 2005 entrustment of inquiry (though discretionary) precedes cognizance. One may go back to S.M. Aslam's case (supra) where it has been held that complaint can be dismissed even without recording statement. That is to say cognizance is taken and then the Court comes to the conclusion that complaint is to be dismissed without recording statement under section 200, Cr.P.C. And this it can do without recording statement under section 200, Cr.P.C. On the other hand under section 5 of the Act of 2005 discretion has been given to the Court to entrust inquiry to Officer Incharge of the Police Station and thereafter cognizance comes. Therefore, in my opinion, it is not essential requirement for proceeding in the Illegal Dispossession Act, that statement of complainant be recorded before taking any other step in the proceedings. However after the Court decides to take cognizance then it must start with recording statement under section 200, Cr.P.C. ' Another aspect is, as has been held by the Supreme Court in Shamim's case that non-recording of statement is an irregularity and failure to follow the provisions of section 200, Cr.P.C. In respect of examination of complainant does not entail invalidation of the proceedings taken, learned counsel for the complainant is right in saying that the appellant has failed to demonstrate as to what prejudice if any has been caused to him by non-recording of such statement. 18. I will now deal with the point whether Illegal Dispossession Act, 2005 is applicable to cases of individual persons or whether it is only applicable to cases where land grabbers and mafia groups are involved. In this regard the learned counsel referred to Zahoor Ahmad's case and the following para from that order:--- "After enactment of the Illegal Dispossession Act, 2005 it has been noticed that although this Act was restricted in its scope and applicability to Illegal Dispossession from immovable properties only by a particular class of persons who could qualify as property grabbers/Qabza Groups/land mafia yet the said Act is now being invoked and utilized by all kinds of aggrieved persons in all kinds of cases of dispossession from immovable properties even by individuals who have no credentials or antecedents of being property grabbers or being members of a Qabza Group or land Mafia. Such abuse and wrong utilization of the Illegal Dispossession Act, 2005 has been found to be completely nugatory to its contents as well as objectives. It has appeared that through a mistaken or deliberate issue of the Illegal Dispossession Act, 2005 the legal remedies already occupying the field against run of the mill and ordinary dispossession from immovable properties
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have been dispossessed of the field and that surely was not the intent or spirit of the Illegal Dispossession Act, 2005." - 19. The preamble of Illegal Dispossession Act, 2005 reads as under:--- "Whereas it is expedient to protect the lawful owners and occupiers of immoveable property from their illegal or forcible dispossession therefrom by the property grabbers;" 20. What is to be noticed thereafter, is that the law defines "occupier" and the "owner" and does not define "property grabbers". Section 3 is relevant and it reads as under:--- "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 owners 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. 21. The very first words of the section 3 are that no one shall enter. There is no mention in this section that no one belonging to a mafia or group of land grabbers. Further there is no requirement in the Act that one must have grabbed at least so many properties and only then he will be…
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