ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Cr. Acq. Appeal No.S-365 of 2010.
Date of hearing: 09.05.2011.
Appellant: Nabi Bux S/o Vikio Machhi
Respondent: State & others
Mr. Mr. Hakim Ali Siddiqui, Advocate for the Appellant.
Syed Meeral Shah, D.P.G for the State.
None present for the Respondent No.2 to 5.
Muhammad Ali Mazhar, J- This appeal is brought to challenge the judgment dated 21.7.2009, passed by the VIth learned Additional District & Session Judge, Hyderabad in Criminal Complaint No.18/2008, whereby, the respondent No.2 to 5 were acquitted.
1. The facts forming the background of this case are that the appellant filed a complaint under Section 3,4,7 & 8 of the Illegal Dispossession Act 2005 against the respondent No.2 to 5. In the complaint, it was inter alia contended that the complainant is exclusive and lawful owner of the agriculture land bearing Survey No.153 and 158, measuring 11.01 Acres, situated at Deh Ghotano, Taluka Hala and was in possession of the same since long and the revenue record stand mutated and agricultural pass book was also issued in favour of the appellant/complaint. It was further averred that the respondent No.2 to 5 are playing in the hands of influential and strong people of the area have forcibly occupied and dispossessed the complainant from the land in question at gun point about eight months back. The complainant made complaints and had taken all efforts to get back the possession but all in vain. Applications were made to various government officials but no action was taken, thereafter, a complaint was filed under Illegal Dispossession Act in the court.
2. On institution of complaint, summons were issued. The learned trial court recorded the statement of the complainant and his witnesses namely Ghulam Ali and Muhammad Bux. The statement of accused/respondent No.2 to 5 was also recorded under Section 342 Cr.p.c. After recording the evidence and hearing the counsel for the parties, the trial court acquitted the accused No.2 to 5.
3. The record shows that on 08.12.2009, M/s Bashir Ahmed Rahu and Company had filed their Vakalatnama in this court for the Respondents No.2 to 5 but they never appeared in court on any date to represent the respondent No. 2 to 5, except 8.12.2009, when they simply filed their vakalatnama. Today, though his name is printed in the daily cause list but the position is same. Neither Respondents No.2 to 5 are present nor their counsel nor any intimation is received.
4. The learned counsel for the appellant argued that initially he filed Criminal Revision Application in this court against the impugned order dated 21.07.2009, but subsequently, he filed an amended title in pursuance of the order of this court dated 13.05.2010, thereafter, the criminal revision application was converted by the office into a Cr. Acquittal Appeal.
5. He further averred that while passing the judgment, the trial court failed to appreciate the evidence. He further argued that the ownership of the complainant/appellant and his dispossession was completely established being an undisputed fact even then, the trial court acquitted the respondent No.2 to 5 and passed the judgment in a slipshod manner. The finding of the trial court on Point No.1 is illegal, perverse and suffers from misreading of evidence. He further argued that while passing the order, the trial court has ignored the material aspect and scope of Section 8 of the Illegal Dispossession Act, 2005.
6. The learned Deputy Prosecutor General is also of the view that the judgment is defective due to non compliance of Section 8 of the Act and he does not support the impugned judgment passed by the trial court.
7. I have seen the impugned judgment. In fact, the trial court in its judgment framed two points for determination which are as under:-
1. Whether the accused trespassed the agriculture land bearing survey No.153 in Deh Ghotano Taluka Hala of complainant and illegally dispossessed him from the same?
2. What should the order be?
8. The judgment further shows that though the respondents were acquitted by the trial court but in the findings of point No.2, the learned trial court has observed as under:-
“The record has indicated that the accused persons have admitted the allotment in favour of complainant, which is also proved by the complainant through documents regarding land in question bearing survey No.158 measuring 5 acres 2/3 ghuntas and no one has come forward to prove any transaction held by the complainant regarding handing over the possession. Therefore, the complainant is entitled to get his possession over the land in question u/s 8 (2) of Illegal Dispossession Act, if there is no any case pending before the court of law related to the possession of property in question”
9. The trial court has clearly held that the appellant/complainant is entitled to get the possession of the land in question u/s 8 (2) of the Illegal Dispossession Act but no directions were issued to the Officer-in-charge of Police station for the assistance as may be required for the restoration of the possession of the property to the owner.
10. The Illegal Dispossession Act 2005 is a special law which has been promulgated to protect the lawful owners and occupiers of immoveable properties from their illegal or forcible dispossession by the property grabbers. Under Section 7 of the Act, a specific provision for interim relief has also been provided while under Section 8 meticulous provision has been made for delivery of possession of the property to the owner, which reads as under:-
“8. Delivery of possession of property to owner etc,-- (1) On conclusion of trial, if the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the court may, at the time of passing order under sub-section (2) of that section, direct the accused or any person claiming through him for restoration of the possession of the property to the owner or, as the case may be, the occupier, if not already restored to him under section 7.
(2) For the purpose of sub-section (1), the Court may, where it is required, direct the Officer-in-Charge of the police station for such assistance as may be required for restoration of the possession of the property to the owner or, as the case may be, the occupier”.
11. Provision of Section 3 of Illegal Dispossession Act, 2005, is very clear and unambiguous and its scope is wide enough to cover the class of persons mentioned in the preamble of Illegal Dispossession Act, 2005, cannot restrict its meaning and the Act is applicable to dispossession of a person from property by any person including land grabber, Qabza group or land mafia. For the purposes of attracting provisions of Section 3 of Illegal Dispossession Act, 2005, court is required to examine as to whether property was an immovable property; secondly that the person was owner or the property was in his lawful possession; thirdly that accused entered into or upon the property unlawfully; fourthly that such entry was with intention to dispossess i.e. ouster, evict or deriving out of possession against the will of 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 govern or relates to authority over what is not in one's physical possession or to occupy i.e. holding possession, reside in or something. If act of accused comes within the meaning of any of the words viz. dispossess, grab, control or occupy on the date when Illegal Dispossession Act, 2005, was promulgated then action can be initiated as provided under Section 4 of Illegal Dispossession Act, 2005. Reference can be made to a judgment reported in 2010 SCMR 1254.
12. The honorable Supreme Court in its another judgment reported in 2009 SCMR 1066, held that in order to constitute an offence under section 3 (1) of the Illegal Dispossession Act, 2005, the complainant is to allege and show before the Court:-
(i) that the complainant is the actual owner (or occupier i.e. in lawful possession) of the immovable property in question;
(ii) that the accused has entered into (or upon) the said property;
(iii) that the entry of the accused into (or upon) the said property is without any lawful authority;
(iv) that the accused has done so with the intention to dispossess (to grab or to control or to occupy) the complainant.
The defence line for the accused can be:--
(1) that the complainant is not the actual owner of the property;
(2) that the entry of the accused into the property is not to dispossess the complainant;
(3) that the accused has the lawful authority to enter into the property;
(4) that the accused had no intention to dispossess the complainant.
13. It was further held in the judgment quoted supra that the law has made it clear that a person who is proved guilty shall not save him from the punishment for which he may be liable under any other law for the time being in force. The provisions of section 3(2) is salutary and mandatory. It is with the purpose to alleviate the suffering and is also effective deterrent against crime. The Legislature has taken full care to close all doors of any injustice to the parties.
14. The trial court acquitted the accused persons but it was held that the complainant is entitled to get his possession over the land in question under Section 8 (2) of the Illegal Dispossession Act 2005. The order passed by the trial court is totally vague and uncertain. It is not clear from the findings in whose possession the property is in question and from whose possession, the property in question is to be restored to the appellant. It is also not clear whether the property in question is under illegal occupation and possession of the private respondents. The trial court merely passed a declaration that the complainant is entitled to get the possession of the land in question but no directions have been issued to the accused or any person claming through him for restoration of the possession of the property to the owner. Since mere declaration and directions to the accused for restoration of possession is totally ineffectual and insufficient without the aid and assistance of police, therefore, under sub-section 2 of Section 8 of the Illegal Dispossession Act 2005, it is clearly provided that for the purpose of sub-section (1), the Court may, where it is required, direct the Officer-in-Charge of the police station for such assistance as may be required for restoration of the possession of the property to the owner or, as the case may be, the occupier. The word “may” used in this Section is not directory but mandatory in nature for speedy and expeditious justice without which the true spirit and rationale of Section 8 can never be achieved. In fact there is no universal rule to determine as to whether a provision is directory or mandatory in nature. The golden rule, however, for determining whether a particular provision is directory or mandatory in nature, was to determine the same in the light of the scheme of a particular statute. The nature and purpose of the provision was to be ascertained the intention of the Legislature. The honorable Supreme Court in its judgment reported in 2004 P T D 2187, held that the word 'may' usually and generally does not mean 'must' or 'shall' but it is always capable of meaning 'must' if the discretionary power is conferred upon a public authority with an obligation under the law. The word 'may' is not always used in the statute with the intention and purpose to give uncontrolled powers to an authority rather oftenly it is used to maintain the status of the authority on whom the discretionary power is conferred as an obligation and thus the legislative expression in the permissive form, sometimes is construed mandatory. It is, however, only in exceptional circumstances in which a power is conferred on a person by saying that he may do a certain thing in his discretion but from the indication of the relevant provisions and the nature of the duty to be done, it appears that exercise of power is obligatory. This is an accepted principle of law that in a case in which the statute authorizes a person for exercise of discretion to advance the cause of justice, the power is not merely optional but it is the duty of such person to act in the manner it is intended.
15. No separate provision or procedure has been endowed with in this Act for the execution or implementation of the order of the trial court, therefore, a precise provision and mechanism has been provided for the court if on conclusion of trial, the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the court may, at the time of passing order direct the accused or any person claiming through him for restoration of the of possession of the property to the owner and for the purposes of execution and implementation of order, the court is also required to direct officer-in-charge of the police station for such assistance as may be required for restoration of the possession.
16. The upshot of this discussion leads me to an irresistible conclusion that while passing the impugned judgment, the learned trial court failed to apply the correct approach of law and passed an incomprehensible and patently improbable judgment that to accept it could amount to perpetuating a grave miscarriage of justice. Consequently, the impugned judgment is set aside with the direction to the trial court to pass a speaking order in accordance with law within a period of two months after hearing the parties.
The Appeal stands disposed of in the above terms.
Judge