IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Revision Application No.S-57 of 2021
Muhammad Murad Bhutto .Applicant/complainant.
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.
Dated. 16th September, 2022. J U D G E