Illegal dispossession act apply not only land grabbers but also on relatives. | Case law on Illegal Dispossession Act, 2005 | Illegal Dispossession Act, 2005 in urdu
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| Illegal dispossession act apply not only land grabbers but also on relatives. | Case law on Illegal Dispossession Act, 2005 | Illegal Dispossession Act, 2005 in urdu |
غیر قانونی قبضہ کا قانون 1905کیا رشتہ داروں پر لاگو ھوتا ھے۔
یہ کہانی ایک قانونی تنازعے کے گرد گھومتی ہے جس میں ایک جائیداد کے مالک اور اس کے بھائیوں کے درمیان اختلافات شامل ہیں:
1. **پس منظر
**: درخواست گزار (نیاز احمد اور اس کی بیوی) اور جواب دہندہ (جو کہ درخواست گزار کا بھائی ہے) کے درمیان ایک چار منزلہ مکان کے قبضے پر تنازعہ ہے۔ یہ مکان ان کے تیسرے بھائی افتخار کا تھا، جو معذور اور غیر شادی شدہ تھا اور 2015 میں وفات پا گیا تھا۔
2. **قبضہ**
: 30 ستمبر 2008 کو، جواب دہندہ نے اس مکان کی ملکیت قانونی طور پر منتقل کر دی تھی۔ مگر، درخواست گزاروں نے 7 نومبر 2020 کو اس مکان میں غیر قانونی طور پر داخل ہو کر چوتھی منزل پر قبضہ کر لیا۔
3. **قانونی کارروائی**
: جواب دہندہ نے قانون نافذ کرنے والے اداروں سے مدد طلب کی، جو ناکام رہی۔ پھر جواب دہندہ نے 3/4 کے تحت غیر قانونی قبضہ کے مقدمے میں شکایت درج کی، جس پر 18 ستمبر 2021 کو سیشن جج نے درخواست گزاروں کو چوتھی منزل خالی کرنے کا حکم دیا۔ درخواست گزاروں نے اس حکم کو چیلنج کیا، اور بعد میں اپنی بریت کی درخواست دی، جو مسترد کر دی گئی۔
4. **عدالت کا فیصلہ**
: سندھ ہائی کورٹ نے درخواست گزاروں کی جرمی نظرثانی کی درخواستوں کو 23 فروری 2024 کو مسترد کر دیا، جس کی تصدیق کی گئی کہ درخواست گزاروں کا قبضہ غیر قانونی تھا اور ان کے خلاف کارروائی درست تھی۔
اس کیس کا منفرد نقطہ یہ ہے کہ تنازعہ کا مرکز جائیداد کے قبضے کے قانونی پہلوؤں سے زیادہ تعلق رکھتا ہے۔ یہ معاملہ اس بات پر بھی روشنی ڈالتا ہے کہ اگر کوئی شخص قانونی طور پر مالک ہے لیکن دوسرے افراد نے اس مکان میں غیر قانونی طور پر داخل ہو کر قبضہ کر لیا ہو، تو قانونی کارروائی میں مشکلات پیش آ سکتی ہیں۔
یہ کیس عدالتوں کی طرف سے غیر قانونی قبضے کے خلاف کارروائی کرنے کی اہمیت اور قانونی ملکیت کے حقوق کو مضبوط بنانے کی ضرورت کو اجاگر کرتا ہے۔
Must read judgement
PRESENT:
Mr. Justice Syed Hasan Azhar Rizvi
Mr. Justice Aqeel Ahmed Abbasi
Criminal Petition No.66-K & 67-K of 2024
[Against the Order dated 23-02-2024 passed by the High Court of Sindh
Karachi in Crl. Revision Applications No. 219 of 2021 and 262 of 2022]
Niaz Ahmed & another
…Petitioner(s)
Versus
Aijaz Ahmed & Others.
…Respondent(s)
For the Petitioner(s)
: Mr. Shamshad Ali Qureshi, ASC
(in both cases)
For Respondent(s)
Research Conducted by
:
:
N.R.
Paras Zafar, Judicial Law Clerk
Date of Hearing
: 15.07.2024.
JUDGMENT
Syed Hasan Azhar Rizvi, J.- Through these
petitions, the petitioners have challenged the judgment dated
23.02.2024 (“the impugned judgment”), passed by the High Court
of Sindh, Karachi (“the High Court”), whereby Criminal Revision
Applications No. 219 of 2021 and 262 of 2022 filed by them were
dismissed.
2.
Facts in brief are that the respondent No. 1 and
petitioner No.1 are the real brothers whereas the petitioner No.2 is
the wife of petitioner No.1. They had another brother namely
Iftikhar (deceased), who was unmarried and disable, residing with
the respondent No.1 in the four storey House No.4/94, Muhallah
Criminal Petition No.66-K & 67-K of 2024 -2-
Shah Faisal Colony, Karachi (“the subject house”). Iftikhar had
independently purchased and owned the subject house.
Iftikhar(deceased) on 30.09.2008 transferred the ownership of the
subject house to the respondent No. 1 by virtue of a legally
executed registered Declaration and Confirmation of Oral Gift of
the subject immoveable property during his lifetime. Iftikhar
passed away in 2015, meanwhile, respondent No. 1 continued to
enjoy peaceful possession of the subject house being its absolute
owner. On 07.11.2020, the petitioners, in absence of respondent
No.1 unlawfully entered in the subject house by breaking locks,
and occupied the fourth floor of the building. Respondent No. 1
sought intervention from law enforcement, which proved
ineffective. Consequently, respondent No. 1 filed Complaint (I.D
Complaint No. 173 of 2020) under sections 3/4 of the Illegal
Dispossession Act, 2005 (“IDA, 2005”), alongwith, an application
under section 7 thereof before the learned Additional Sessions
Judge-III, Karachi East. The application of the respondent No.1
was allowed vide order dated 18.09.2021 passed by the learned
Additional Sessions Judge-III, Karachi East whereas petitioners
were directed to restore the possession of the fourth floor of the
subject house to the respondent No.1. This order was challenged
by the petitioners in Criminal Misc. Application No.219 of 2021.
In the meanwhile, petitioners moved an application under
section 265-K of the Code of Criminal Procedure, 1898 (Cr.P.C) for
their acquittal which was dismissed vide order dated 22.10.2022.
This order was challenged by the petitioners through a Criminal
Revision Application No.262 of 2022. Both those Criminal Revision
Applications were subsequently consolidated and dismissed by the
Criminal Petition No.66-K & 67-K of 2024 -3-
learned Judge of the Sindh High Court through the impugned
judgment dated 23.03.2024. Hence, these petitions.
4.
The learned counsel for the petitioners contends that
the subject house is inherited one as such no proceedings under
IDA, 2005 can be initiated against the legal heirs and the
proceedings under IDA, 2005 are non-maintainable against
petitioner No.1 as he is the brother of deceased Iftikhar Ahmed;
that proceedings under IDA, 2005 can only be initiated against
Qabza Mafia or Land grabbers but not against family members.
5.
We have heard the learned counsel for the petitioners
and perused the material available on record.
I. SCOPE AND APPLICABILITY OF IDA, 2005
6.
IDA, 2005 is a unique legislation aimed to
safeguarding legitimate owners and occupants of immovable
properties from being unlawfully or forcefully deprived of their
possessions by Illegal occupants or grabbers. This legislation
specifies the category of persons who can approach the court of
competent jurisdiction for seeking relief i.e. the owner or occupier.
Definitions of both these expressions namely “occupier” and
“owner” for the purpose of applicability of the provisions of the IDA,
2005, have been provided by clauses (c) and (d) respectively of
Section 2 of the IDA, 2005 as reproduced below:-
"2(c) "occupier" means the person who is in lawful
possession of a property;
"2(d) "Owner" means the person, actually owns the
property at the time of his dispossession, otherwise than
through a process of law."
Thus, any person who being lawful owner or lawful occupier of the
property has been illegally dispossessed can bring a complaint
under the provisions of IDA, 2005.
7.
It is settled principle of law that in order to make out a
case under sections 3 and 4 of the IDA, 2005, complainant has to
prima facie establish before the court that he is the lawful owner or
was the occupier of the subject property; that accused had entered
into or upon the said property without having any lawful authority;
that the accused had done so with the intention to dispossess or to
grab or to control or to occupy the said property.
8.
The contention of the learned counsel that
applicability of IDA, 2005 is restricted to the Qabza Mafia or land
grabbers is misconceived one as it contradicts the established legal
principles. By now it is settled by this court that scope of IDA,
2005 is wide enough to cover any illegal occupant and is not
limited to the mafia or Qabza Groups only.
9.
This court in the case of Mumtaz Hussain v. Dr. Nasir
Khan and others,1 has elaborately dealt with the scope of IDA,
2005 and ruled as under:-
"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."
Thus, if act of accused comes within the meaning of any of
the words viz. dispossess, grab, control or occupy on the date
when IDA, 2005 was promulgated then action can be initiated as
provided under Sections 3 and 4 of IDA, 2005.2
10.
Moreover, this court in the case of Mst. Gulshan Bibi
and others v. Muhammad Sadiq and others,3 has held as under:
1 Mumtaz Hussain vs. Dr. Nasir Khan and others [2010 S C M R 1254 ]
paragraph 10
2 Ibid.,
3 [PLD 2016 SC 769]
Criminal Petition No.66-K & 67-K of 2024 -5-
“7. From what has been discussed above it is evident that
no provision of the Illegal Dispossession Act, 2005
imposes any precondition on the basis of which a
particular class of offenders could only be prosecuted. The
Act aims at granting efficacious relief to lawful owners and
occupiers in case they are dispossessed by anyone without
lawful authority. Section 3(1) of the said Act by using the
terms 'anyone' and 'whoever' for the offenders clearly
warns all persons from committing the offence described
therein and when found guilty by the court are to be
punished without attaching any condition whatsoever as
to the maintainability of the complaint. So all that the
Court has to see is whether the accused nominated in the
complaint has entered into or upon the property in
dispute in order to dispossess, grab, control, or occupy it
without any lawful authority. Nothing else is required to
be established by the complainant as no precondition has
been attached under any provision of the said Act, which
conveys the command of the legislature that only such
accused would be prosecuted who holds the credentials
and antecedents of 'land grabbers' or 'Qabza Group'. It
does not appeal to reason that for commission of an
offence reported in the complaint filed under the Illegal
Dispossession Act, 2005 the Legislature would intend to
punish only those who hold history of committing a
particular kind of offence but would let go an accused who
though has committed the offence reported in the
complaint but does not hold the record of committing a
particular kind of offence. In our view trial of a case is to
be relatable to the property which is subject matter of the
complaint, pure and simple. Any past history of the
accused with regard to his act of dispossession having no
nexus with the complaint cannot be taken into
consideration in order to decide whether the accused
stands qualified to be awarded a sentence under the Act
or not. Once the offence reported in the complaint stands
proved against the accused then he cannot escape
punishment under the Illegal Dispossession Act, 2005.
8. In view of the above discussion we conclude that in any
proceedings initiated under Illegal Dispossession Act,
2005, the issues which fall for decision would be whether
the offence against a lawful owner or occupier, as
described in the complaint, has taken place and whether
it is the accused who has committed it without any lawful
authority. Anyone found committing the offence described
in Section 3 would be amenable to prosecution under the
provisions of Illegal Dispossession Act, 2005 and no past
record of the accused needs to be gone into by the court.”
11.
The contention of the learned counsel for the petitioner
that a civil dispute is pending between the parties therefore IDA,
2005 is inapplicable has been rightly answered by the learned High
Court in the paragraph 10 of the impugned Judgment, as
reproduced below:-
10. In the present case, it is also the stance of the
applicants that a civil litigation in respect of the
subject property is pending between the parties as
such the impugned order cannot be passed.
Criminal Petition No.66-K & 67-K of 2024 -6-
Although the suit filed by the applicant was
dismissed which till date has not been restored and
if for the sake of arguments, it is assumed that the
litigation is pending even then it is well settled
position of law that merely on the basis of pendency
of civil litigation neither the proceedings in criminal
matter can be terminated nor the transfer of
possession in terms of section 8 of the Act of 2005
can be declared illegal. This controversy was put to
rest by the Supreme Court of Pakistan in the case of
Shaikh Muhammad Naseem v. Mst. Farida Gul [2016
SCMR 1931] wherein it is held as under:
“5. In the impugned judgment it was also held that
where civil litigation with regard to illegal
dispossession from immoveable property is pending
between the parties, the proceedings under the
Illegal Dispossession Act, 2005 cannot be
maintained. This finding is also based on the
decision of the Lahore High Court in Zahoor Ahmed's
case (PLD 2007 Lahore 231), reasoning of which was
adopted by three-member bench of this Court in
Bashir Ahmed's case (PLD 2010 SC 661). We are of
the view that such a finding is also not sustainable
in law. Any act which entails civil liability under civil
law as well as criminal penalty under criminal law,
such as the Illegal Dispossession Act, 2005 then a
person can be tried under both kinds of proceedings,
which are independent of each other. Once the
offence reported in the complaint stands proved
against the accused within the confines of the
provisions of the Illegal Dispossession Act, 2005 then
he cannot escape punishment on the ground that
some civil litigation on the same issue is pending
adjudication between the parties. No one can be
allowed to take law in his own hands and unlawfully
dispossess an owner or lawful occupier of an
immovable property and then seek to thwart the
criminal proceedings initiated against him under the
Illegal Dispossession Act, 2005 on the pretext that
civil litigation on the issue is pending adjudication
between the parties in a court of law. Therefore,
irrespective of any civil litigation that may be
pending in any court, where an offence, as described
in the Illegal Dispossession Act, 2005, has been
committed, the proceedings under the said Act can
be initiated as the same would be maintainable in
law.”
II. CONDITIONS FOR APPLICATION OF SECTION 7 OF IDA,
2005
12.
Present case requires determination as to what are the
conditions for invocation and application of section 7 of IDA, 2005
and whether, in law, the view taken by the learned trial court and
High Court is correct. For the sake of convenience, Section 7 is
reproduced below:-
Criminal Petition No.66-K & 67-K of 2024 -7-
7. Eviction and mode of recovery as an interim relief.--
-(1) If during trial the Court is satisfied that a person is
found prima facie to be not in lawful possession, the Court
shall, as an interim relief direct him to put the owner or
occupier as the case may be, in possession.
The intent behind section 7 ibid is to grant interim relief
during the course of the trial.
13.
Bare perusal of section 7(1) of IDA, 2005 reveals three
principal considerations/conditions; Firstly, the jurisdiction
conferred thereby is exercisable during the trial only. Thus, interim
relief can be granted by the court when trial is still in progress
even when the guilt of accused has not been established;
Secondly, the use of expression “prima facie” indicates that court
has to only form a prima facie opinion and must be satisfied that
accused is “not in lawful possession” of the property. This
requirement is less onerous and distinct from reaching a
conclusive finding or determination that the accused has entered
the property without lawful authority with intent to dispossess,
grab, or control the immovable property as specified in the third
and fourth elements of section 3 of IDA, 2005. The use of the
expression “not in lawful possession” by the Legislature appears to
be a deliberate choice reflecting a less stringent criterion to enable
interim relief during the trial this is because the offence under
section 3 can only be proved/otherwise at the conclusion of the
trial; and Finally, if the court finds that section 7 is applicable
then it is duty bound to provide interim relief specified therein.
Thus, interim order under section 7 of IDA, 2005 can be
passed when prima facie it is established to the satisfaction of the
Court that the accused is in unlawful possession of the
immoveable property and complainant is either owner or was in a
lawful possession of the immoveable property before dispossession.
Criminal Petition No.66-K & 67-K of 2024 -8-
14.
Now what needs to be determined is whether these
conditions stand fulfilled in the present case. Firstly, grant of
interim relief is subject to condition "during trial". The expression
"trial" has been interpreted by this Court in the case of Haqnawaz
and others v. The State and others,4 wherein it has been held that:-
"From a review of the above provisions of the Code, it is
quite clear to us that taking of cognizance of a case by a
Court is not synonymous with the commencement of the
trial in a case. Taking of cognizance of a case by the Court
is the first step, which may or may not culminate into the
trial of the accused. The trial in criminal case, therefore,
does not commence with the taking of the cognizance of
the case by the Court".
Thus, use of word by the legislature "during the trial" in section
7(1) of the IDA, 2005 is of significant importance. There is no cavil
to the proposition that taking of cognizance is not commencement
of the trial. Trial of a case commences with the framing of the
charge against the accused. In the case at hand, charge was
framed and case was at the stage of recording of evidence.
Secondly, complainant must satisfy the court that accused is
prima facie in unlawful possession of the immoveable property. The
expression “prima facie” is a latin term which means “its face or at
first impression.” Thus, a prima facie case only means that there is
ground for proceeding. It is not the same thing as proof which
comes later when the Court has to find whether the accused is
guilty or not guilty. In the case at hand, learned trial court has
rightly concluded that respondent No.1 had prima facie case while
petitioners could not justify their possession on the fourth floor of
the subject house. In view thereof, application under section 7 of
IDA, 2005 was rightly allowed and upheld by the trial court and
High Court respectively.
4 (2000 SCMR 785)
Criminal Petition No.66-K & 67-K of 2024 -9-
III. SCOPE AND APPLICABILITY OF SECTION 265-K Cr.P.C
15.
The legal point requiring determination is whether
application of accused under section 265-K of the Cr.P.C was
rightly rejected by the Trial court and High Court.
16.
Cr.P.C has granted an inherent jurisdiction by virtue
of sections 249-A and 265-K to the trial courts to acquit any or all
accused at any stage of the judicial proceedings for reasons to be
recorded, after providing an opportunity of hearing to the parties.5
Section 265-K is reproduced below:-
“265-K. Power of Court to acquit accused at any stage:
Nothing in this Chapter shall be deemed to prevent a
Court from acquitting an accused at any stage of the case,
if, after hearing the prosecutor and the accused and for
reasons to be recorded, it considers that there is not
probability of the accused being convicted of any offence.”
(Emphasis supplied)
The bare perusal of the above-provision reveals that law
permits the exercise of powers "at any stage of the case" without
specifying a particular stage. The words “at any stage” used in
both the sections include the stages before or after framing of the
charge or after recording of some evidence.6 The only condition
required to be fulfilled is the adherence to the principle of audi
alteram partem, ensuring both parties are heard and afterwards if
the court considers that there is no probability of the conviction of
the accused, it may take appropriate action.
17.
The expressions "consider" and "no probability of
conviction" within the provision are crucial yet undefined in the
Cr.P.C. Consequently, resort shall be made to the ordinary
meaning of the said phrases.
5 Ammad Yousaf v. The State [P L D 2024 Supreme Court 273]
6 The State v. Raja Abdul Rehman [2005 SCMR 1544]
Criminal Petition No.66-K & 67-K of 2024 -
10-
The expression "consider" has been defined in Oxford
Dictionary of English (Second Edition) as follow:
"consider means to think carefully about (something),
typically before making a decision.”
The word "probability" has been defined in Oxford Dictionary
of English (Second Edition) in following words:-
"probability means the quality or state of being probable;
the extent to which something is likely to happen or be the
case”.
18.
Section 265-K of the Cr.P.C is designed to prevent
unnecessary trials when a conviction is unlikely. Thus, available
evidence, whether presented or pending, must be carefully
evaluated to assess the possibility of conviction. Evidence must be
thoroughly examined rather than just briefly reviewed hence
conscious application of judicial mind is mandatory for assessment
of incriminating material collected during the course of
investigation in order to test the same on the touchstone of
"probability".
19.
This court in the case of The State v. Raja Abdul
Rehman,7 has delineated the scope and extent of powers of court
under Section 265-K of Cr.P.C as follows:-
"This Court in the case of Bashir Ahmad v. Zafar ul Islam
PLD 2004 SC 298 and Muhammad Sharif v. The State and
another PLD 1999 SC 1063 (supra) did not approve
decision of criminal cases on an application under section
249- A, Cr.P.C. or such allied or similar provisions of law,
namely, section 265-K, Cr.P.C. and observed that usually
a criminal case should be allowed to be disposed of on
merits after recording of the prosecution evidence,
statement of the accused under section 342, Cr.P.C.,
recording of statement of accused under section 340(2);
Cr.P.C. if so desired by the accused persons and hearing
the arguments of the counsel of the parties and that the
provisions of section 249-A, section 265-K and section
561-A of the Cr.P.C. should not normally be pressed into
action for decision of fate of a criminal cases.
Criminal Petition No.66-K & 67-K of 2024 -
11-
20.
It is a settled principle of law that in normal
circumstances, full-fledged trial has to be conducted providing fair
opportunities to the prosecution to prove evidence. However,
departure can be made from the settled practice when
"Extraordinary circumstances" are shown.8 The extraordinary
circumstances means and includes inability of prosecution to
collect incriminating evidence during the course of investigation
sufficient to record conviction.
21.
In order to establish extraordinary circumstances and
to prove that there is no probability of conviction, accused mainly
relies on any of the following grounds:-
(i)
that even if the facts alleged by the prosecution are taken
to be true on their face value, they do not make
out/constitute the commission of any offence by the
accused9;
(ii)
that there is no evidence or incriminating material
supporting the alleged offence10;
(iii)
the evidence gathered is insufficient for a conviction, even
if presented at trial11; and
(iv)
the existing prosecution evidence does not support a
conviction, and any additional evidence is unlikely to
strengthen the case against the accused.12
22.
In the case at hand, petitioners relied on the ground
that proceedings under IDA, 2005 are not maintainable against
family members as it is restricted only to the Qabza Mafia and land
grabbers and furthermore that there is a civil dispute between the
parties hence no probability of conviction of the petitioners. Both
the contentions raised by petitioners are against the settled
8 Abbas Haider Naqvi and another v. Federation of Pakistan and others [PLD
2022 SC 562]
9 Muhammad Taqi v. The State [1991 PCrLJ 963]; Yasin Khan v. The State [1995
PCrLJ 142]
10 Muhammad Sharif v. Muhammad Hussain [1993 PCrLJ 2053]
11 Ghafooran v. Muhammad Bashir [1977 SCMR 292]
12 Muhammad Sharif v. The State [PLD 1999 SC 1063]; The State v. Asif Ali
Zardari [1994 SCMR 798]
Criminal Petition No.66-K & 67-K of 2024 -
12-
principles of law and they failed to raise or prove any ground
within the ambit of section 265-K of the Cr.P.C. Thus, their
application was rightly rejected by trial court.
23.
For what has been discussed above, we find that
impugned judgment is well-reasoned and learned High Court has
considered all the legal and factual aspects of the matter correctly.
The learned counsel for the petitioner has failed to make out a case
warranting any interference in the impugned judgment.
24.
Consequently, these petitions, being devoid of merit,
are hereby dismissed and leave is refused. However, it is reiterated
that the observations made hereinabove are tentative in nature
and the learned Trial Court is at liberty to decide the main
case/complaint under section 3 and 4 of the IDA, 2005 on its own
merits without being influenced by these observations.
25.
Above are the reasons of our short order pronounced
on even date.
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