IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
Crl. Revision
Application No.S-57 of 2021
Muhammad
Murad Bhutto
.Applicant/complainant.
Vs.
Lal
Bux Kosh and others
.......
..Respondents/accused.
Applicant: Muhammad Murad
Bhutto, Through Mr. Mr. Saeed Ahmed Panhwar, Advocate.
Respondents. Lal
Bux and others, Through Mr. Muhammad Iqbal Memon, Advocate.
The State/respondents No.7 to 9: Through, Syed Sardar Ali Shah, Additional
Prosecutor General, Sindh.
Date of
Hearing: 29.08.2022
Date of
Judgment: 16.09.2022
J U D G M E N T
MUHAMMAD SALEEM JESSAR.J- By means of instant Cr.
Revision Application the applicant has assailed the order dated 12.06.2021 passed
by learned Additional Sessions Judge/MCTC Ubauro in Direct Complaint No.81 of 2020,
filed by applicant whereby he has declined to take cognizance in respect of the
offence allegedly committed by accused persons/respondents No.1 to 6.
Brief facts, relevant for the disposal of instant revision
application, are that the applicant filed Direct complaint No.81/2021 U/S 3
& 5 of Illegal Dispossession Act, 2005 stating therein that the applicant
and his brothers are lawful owners and were in possession of 04-39 acres
agricultural land bearing S.No.590 situated in Deh Kotlo Yousif, Tapo Rounti, Taluka
Ubauro District Ghotki. It was further stated that 03-00 acres Qabooli land of
S.No.590 facing its north side to one Jawaid Machi, south and east to Ahmed
Kosh and on west Khando Tarat situated in Dehb Kotlo, Yousif Tapo, Rounti Taluka
Ubauro, are in illegal possession of accused. It was further stated that
accused Lal Bux and others asked the applicant to sell the above said 03-00
acres land to them but the applicant/complainant refused to do so, whereupon they
became annoyed. On 26.11.2017 the applicant with his brothers namely Abdul
Hameed and Muhammad Ayoub went on their land when at about 1200 hours noon,
they saw and identified that accused Lal Bux armed with lathi, Aslam armed with
pistol, Abdul Kareem armed with hatchet, Sikandar armed with lathi, Abdul Sami
Armed with lathi and Muhammad Younis armed with lathi had occupied the land and
were in process of ploughing/cultivating with their Al-Ghazi Tractor which was
driven by accused Muhammad Younis, whereupon, the complainant party restrained
them upon which the accused Lal Bux instigated to accused Aslam not to spare
and kill them. On his instigation, accused Aslam made straight fire from his
pistol upon the complainant party but complainant party saved themselves by
falling on ground, thereafter the complainant party ran away from there due to
fear and save their lives. On the same day i.e. 26.11.2017,complainant along
with PW went to PS for registration of case and got registered FIR No.67/2017
at PS Wasti Jewan Shah at about 1500 hours U/s 324/114/447/148/149/147 PPC.
After usual investigation the IO submitted challan before competent Court of
law but learned trial court acquitted the accused, thereafter the applicant
filed acquittal appeal before this Court.
The applicant further stated, after filing of the complaint
the learned trial Court called report from concerned SHO who submitted report
which is based on real facts from which it is evident that the accused persons
have committed the offence as stated in the complaint but Mukhtiarkar Revenue submitted
his report by distorting the real facts, the learned trial Court followed the
report of Mukhtiakar and passed the order in hasty manner without taking
cognizance.
Learned counsel for applicant
submitted that applicant Muhammad Murad owns some agricultural land bearing
survey No.590 having an area 09-39 acres which per record of rights vide VF
VIII-B entry No.255 dated 10.04.1993 is mutated in his favour. However, on
26.11.2017 the respondent/accused had illegally dispossessed him from said land
therefore, he filed direct complaint No.81/2020 before court of Sessions
wherefrom it was assigned to Additional Session Judge/MCTC, Ubauro. The
Additional Sessions Judge, Ubauro without recording any evidence of the
applicant/complainant rejected his complaint on the ground that complainant
tried to convert the civil litigation into criminal complaint which tantamount
to misuse of the process of law. He therefore, submitted that by granting
revision application impugned order dated 12.06.2021 may be set aside and case
may be remanded to the trial Court with directions to record their evidence and
decide the complaint on its own merits. He further submitted that report called
upon by the trial court from Mukhtiarkar as well as SHO concerned did support
to his version even then the trial Court has dismissed his complaint. He submitted
that respondents had no authority or documents to retain the land in dispute
therefore, they being encroachers are liable to be evicted from the land in
question and also to be prosecuted for the offences committed by them. In
support of his contentions, he placed reliance upon cases of Rahim v. Ahmed Jan
and 2 others (2007 PSC SC 908), Mst. Gulshan Bibi and others v. Muhammad Sadiq
and other (PLD 2016 SC 769), Shahzaib Hussain through Attorney v. Muhammad
Ahsan and 6 others (2020 YLR 1317) and Abdul Hafeez v. Additional District
Judge-VII, South Karachi 2 Others (PLD 2009 Karachi 350).
On
the other hand, Mr. Muhammad Iqbal Memon advocate appearing for private
respondents opposed the revision application and submitted that prior to this
complaint applicant/complainant got registered an FIR No.20/2017 with Police
Station Wasti Jeewan Shah under sections 379, 447, 147, 148, 149 PPC in which
accused/respondents were tried and subsequently were acquitted through judgment
dated 01.06.2017. He next submitted that applicant/complainant filed a criminal
acquittal appeal against their acquittal vide Crl. Acquittal Appeal No.S-61 of
2018 before this Court which was also dismissed by means of judgment dated
29.11.2019 and after dismissal of his acquittal appeal he filed this complaint
which tantamount to double jeopardy and is in violation of Article 13 of Constitution
of Islamic Republic of Pakistan, 1973 as well as Section 403 Cr.P.C. In support
of his contentions, he placed reliance upon case of Malik Nazir Ahmed, V.P. Audit, Lahore v. Sh. Fazal Hussain and 6 others
(2001 YLR 1107), Sabir vs. the State (2000 YLR 2173), Manzoor Hussain v. The
State (PLD 1998 Lahore 239), Bashir vs. The State and another (1997 P.Cr.L.J
1771) , Pakistan Steel Mills Corporation Through General manager (A&P),
Karachi v. S. Zafar Ejaz (1997 PLC 353, Sherin Bacha and Others v. Namoos Iqbal
and 3 others (PLD 1993 Supreme Court 247) and Muhammad Ashraf and others v. The State (1995 SCMR 626).
Syed
Sardar Ali shah, Learned Additional Prosecutor General appearing for the State did
not support the impugned order on the ground that compliant filed by the
complainant was in terms of section 3 as well as 4 of Illegal Disposition Act,
2005. Besides, the respondents/accused had no authority or document to retain
the valuable property of the applicant under their unlawful occupation. He further
submitted that respondents being encroachers are illegal occupants therefore, they
cannot be permitted to occupy the land of the applicant without any lawful
authority. As far as claim of respondents that they had purchased the land in
dispute from Muhammad Hashim, the father of the applicant, no such agreement or
any document has been brought on record to substantiate their claims. As far as
dhal (Land Revenue cess) receipts as claimed by the counsel for the respondents,
that they have been paying the same to
Government is concerned, learned Additional PG submitted that per report of
Tapedar some of portion of the land in dispute is uncultivated and when the
land is uncultivated how its dhal/land revenues assessment is to be paid. He therefore,
submitted that it will be appropriate for the parties to record their evidence
before trial Court and the trial Court after recording evidence of the parties
may decide the case according to its own merits. In support of his contentions
he relied upon case of Muhammad Ashraf and Others v. The State (1995 SCMR 626), Abdul Hafeez v.
ADJ VII South Karachi and others (SBLR 2009 Sindh 1279) and Raheem Tahir vs.
Ahmed Jan and two others (2007 SC 908).
Heard.
Record perused.
In the instant case the grievance of the applicant is that the
applicant and his brothers are lawful owners and were in possession of 09-39
acres agricultural land bearing S.No.590 situated in Deh KotloYousif Tapo Rounti
Taluka Ubauro District Ghotki in which 03-00 acres Qabooli land of S.No.590
facing its north side to one Jawaid Machi, south and east to Ahmed Kosh and on
west Khando Tarat situated in Deh Kotlo, Yousif tapo Rounti taluka Ubauro are
in illegal possession of accused, the accused Lal Bux and others asked the
applicant to sell the above said 03-00 acres land occupied by the applicant and
his brothers to them (accused/respondent) but he refused on which they were
annoyed. As consequence of refusal by the applicant to bow down before them to
accept their demand, lal bux and other accused persons duly armed with weapons encroached
upon the land of applicant and when the applicant and his brothers visited
their land and saw the accused persons having encroached upon their lands and
were ploughing on the lands, they objected against such illegal acts of respondents
whereupon the accused Lal Bux instigated to accused Aslam not to spare and kill
them on the instigation by the accused Younis the accused Aslam made straight
fire from his pistol upon the
complainant party but complainant party saved themselves by falling on ground. Thereafter
the complainant party ran away from there due to fear and save their lives. The
Mukhtiarkar Revenue Ubauro/Respondent No.8 herein, in his report filed in
instant Revision Application has stated that on demise of Muhammad Hashim S/o
Jan Muhammad Bhutto his foti Khata Badal was changed in respect of S.No.590
(04-39) and such mutation in record of rights was effected in favour of his
legal heirs, Muhammad Murad S/o Deceased Muhammad Hashim, the
applicant/complainant, and his three brothers namely Khuda Bux, Abdul Hameed and
Muhammad Ayoub. Even the respondents have not denied that the father of the
applicant was the allottee of the land in dispute but according to them he had
sold the same to the accused persons which fact has been denied by the
applicant side.
From the perusal of above facts, it
is crystal clear that in order to come to a proper conclusion whether such factual
aspects are true or otherwise, trial Court ought to have recorded the evidence of
both the parties. However, in instant case the trial Court acted in a hasty and
mechanical manner and without recording evidence of the parties, straight away
declined to take cognizance in the matter. For this proposition, I am fortified
by the principle laid down by this Court in the case of Daim Ali Khan v.
Mushtaque Ali alias Farooq reported in 2017 YLR 1456 wherein it was held that Question of Illegal Dispossession was
different from civil liabilities and Trial Court was bound to ascertain as to
whether allegations leveled by complainant constituted offence under
Illegal Dispossession Act, 2005, or otherwise. It
was further held that trial Court failed to exercise jurisdiction vested in it
in appropriate manner and committed material Illegality and gross
irregularity, while dismissing complaint without recording evidence of parties
and affording them opportunity to produce their documents during trial. It was
observed that execution of sale agreement of accused
was disputed by complainant, while ownership of house in
question by their deceased father was admitted and acknowledged by accused, in
such circumstances, complainant was not legally barred from maintaining
criminal Actions. Consequently, this Court set aside the order
passed by Trial Court, holding that same was result of material Illegality
and gross irregularity which attracted interference of this
Court and remanded back the matter to Trial Court for disposal on merits in accordance
with law.
Learned counsel for the respondents
laid much emphasis on his plea that the proceedings under the Illegal
Dispossession Act, 2005 tantamount to double jeopardy as the
same was in violation of Article 13 of Constitution of Islamic Republic of
Pakistan, 1973 as well as Section 403 Cr.PC, because earlier an FIR was lodged by
the applicant/complainant and after the trial of the accused persons they were acquitted
by the trial Court and thereafter the acquittal appeal filed by the
applicant/complainant against the acquittal order of the respondents was also
dismissed by this Court. In this connection, it may be observed that the proceedings
under the Pakistan Penal Code and that under Illegal Dispossession Act, 2005
are totally different from each other. It may be observed that Illegal Dispossession Act, 2005 is
a special legislation, having been enacted in order to protect the lawful
owners and occupiers of immovable properties from their Illegal or
forcible Dispossession there from by the land grabbers. The object
and spirit of the said legislation was to curb the Activities of land
grabbers. It may also be observed that an ordinary criminal Court trying the
cases against the accused persons for the offences under the Pakistan Penal
Code have no authority/jurisdiction to restore the possession of a person who
has been illegally dispossessed by the culprits. Such Courts can merely award sentence
for committing an offence of trespass into the property of any person. Contrary
to this, under the provisions of Illegal Dispossession Act, 2005 the Court
taking cognizance under the said Act is fully competent and authorized to put a
person into possession of the land in dispute if it comes to the conclusion
that such person had been illegally dispossessed from the property in his
occupation/possession.
In this connection reference may be
made to the case of Muhammad Nadeem Anwar v. SECURITIES AND EXCHANGE COMMISSION
OF PAKISTAN reported in 2014 SCMR 1376. The relevant facts in the
cited case were that The Chief Executive Officer of bank (i.e. accused)
allegedly obtained loan facilities fraudulently, falsified bank records,
misappropriated funds of bank and his company and also committed corrupt
practices. Criminal complaint was filed against accused by Securities and
Exchange Commission of Pakistan (SECP) before the High Court. Reference was
also filed against accused before National Accountability Bureau (NAB). Criminal
complaint and NAB reference were based on the same acts/omissions
by accused. Accused was convicted under the NAB reference for
corruption and corrupt practices. In such circumstances, accused took a plea that
elements of the criminal complaint filed by SECP and NAB reference were
identical; therefore, when he was convicted in the NAB reference, he could not
be convicted twice for the same acts and omissions in the
criminal complaint before the High Court. It was observed by Honorable Supreme
Court that Provisions of Ss. 230(7), 234(6) & 282-K of Companies Ordinance,
1984 and Ss. 9, 10 & 11 of National Accountability Ordinance, 1999
were different enactments of law having different procedure
and forum for initiating proceedings there under. Although both sets
of offences had been committed by the accused in one go; however,
accused acted in such a manner which constituted offences
punishable under two separate and distinct laws, i.e.
one under the National Accountability Ordinance, 1999 and the
other under the Companies Ordinance, 1984. Despite the fact
that two separate prosecutions of accused arose out of the same incident
or that some of the facts in the two prosecutions were common, the offences
committed by accused under the Companies Ordinance, 1984 were
quite different from the offences committed by
him under the National Accountability Ordinance, 1999. Both
were different and distinct pieces of legislation. Therefore,
acts and omissions committed by accused could not be said to be the same offences.
Since the acts committed by accused did not fall within the definition of same offences,
therefore, principle of double jeopardy as embodied u/s 403 Cr.P.C R/W Article
13 of the Constitution of Islamic Republic of Pakistan, 1973, would not come
into force.
In another case reported as Fateh
Muhammad v. The State 2010 P.Cr.LJ 1082 (QUETTA)
accused was convicted and sentenced under S.156(89) of the
Customs Act, 1969 and under Ss.468 & 471, P.P.C. It was observed
that the said provisions of two different statutes/laws that
the offence of smuggling of goods was punishable under the
Customs Act, 1969; whereas offences of forgery and using forged
documents as genuine was punishable under Ss.468 & 471,
P.P.C. therefore, said offences were not the same. In
circumstances, second trial would be only barred when offence was
the same and in case offences were different /distinct,
then accused could be tried by the two different Courts under two different enactments on
the basis of common set of facts and trial would not be barred. In the
circumstances, contention of counsel for accused having no force was repelled.
It was further observed that, accused was not tried for the same offence,
but for the different and distinct offences in different Courts;
hence, trial of accused, in circumstances was not barred under S.403,
Cr.P.C. or on the principle of double jeopardy.
In the instant case also, the offences committed by the accused
persons fall under two different enactments i.e. one under the Pakistan Penal Code
and other under the Illegal Dispossession Act, 2005, therefore, there seems to
be no bar in taking cognizance under the provisions of Illegal Dispossession
Act, 2005 particularly in view of the fact, as stated above, that the Court trying
the accused allegedly guilty of committing offences under the Pakistan Penal
Code have no jurisdiction and authority to put a person into the possession of
property in dispute from where allegedly such person had been illegally
dispossessed by the accused persons.
Learned Additional
Prosecutor General appearing for the State also did not support the impugned
order. According to him, the complaint filed by the applicant was in terms of
section 3 as well as 4 of Illegal Disposition Act, 2005. He also submitted that
the respondents/accused had no authority or document to retain the valuable
property of the applicant under their unlawful occupation. He further submitted
that respondents being encroachers are illegal occupants therefore, they cannot
be permitted to occupy the land of the applicant without any lawful authority. As
far as claim of respondents that they had purchased the land in dispute from
Muhammad Hashim, the father of the applicant, he submitted that no such
agreement or any documentary evidence has been brought on record to
substantiate their claim. According to him, as far as dhal receipts as claimed
by the counsel for the respondents, that they have been paying the same to
Government is concerned, as per report of Tapedar some of portion of the land
in dispute is uncultivated and when the
land is uncultivated how its dhal (cess)/ land revenues assessment is to be paid. He therefore, proposed
that in the circumstances it will be appropriate for the parties to get their
evidence recorded before trial court and the trial court after recording
evidence of the parties may decide the case according to its own merits.
The upshot of above discussion
is that instant Revision Application is hereby allowed. Consequently the
impugned order dated 12.06.2021 passed by learned Additional Sessions
Judge/MCTC Ubauro in Direct Complaint No. 81 of 2020 is hereby set aside. Resultantly,
the complaint filed by applicant before trial Court shall be deemed to be
pending. Accordingly, the matter is remanded to the Trial Court with direction
to take cognizance in the matter and proceed with the trial and afford
opportunity to both the parties to lead their evidence and after appreciation of
such evidence decide the case strictly in accordance with the law within a
period of six months after receipt of this Judgment under intimation to this Court.
Sukkur.
Dated. 16th September, 2022. J U D G E
Ihsan/*