Civil Proceedings’ Impact on Criminal Complaint under Illegal Dispossession Act

Civil Proceedings' Impact on Criminal Complaint under Illegal Dispossession Act Case Laws Criminal & Civil Proceedings Criminal Law Illegal Dispossession Interpretation - Parliamentary Materials Knowledge - Criminal Law Litigation & Arbitration Solutions - Criminal Law Supreme Court Mr. Justice Faisal Arab in his judgment has decided the issue regarding civil proceedings’ impact on criminal complaint under Illegal Dispossession Act 2005 in Criminal Appeal No. 4-K of 2012.

1. In the present appeal, the appellant, who claims to be a tenant of the respondent, filed Criminal Complaint No.130 of 2010 in the Court of Sessions, Karachi-East under the provisions of Illegal Dispossession Act, 2005 alleging that on 08.01.2010 while he was away, the servants and some hired persons of the respondent entered his rented premises and forcibly took its possession. The said criminal complaint was dismissed as not maintainable by the Additional Sessions Judge vide order dated 13.12.2010 for the reason that a Civil Revision Application No. 77 of 2007 wherein the restoration of possession of the same rented premises has been sought by the Appellant is pending adjudication in the High Court of Sindh. The appellant challenged the order of the Additional Sessions Judge before the High Court in Criminal Revision No.7 of 2011 which was dismissed. While doing so the High Court not only adopted the same reasoning as that of the Additional Sessions Judge but also placed reliance on the judgment delivered by a three member bench of this Court in the case of Bashir Ahmad Vs. Additional Sessions Judge (PLD 2010 SC 661) wherein the scope and applicability of the Illegal Dispossession Act, 2005 was restricted. It was held that only such offenders can be prosecuted who possess the credentials and antecedents of ‘land grabbers’ or ‘Qabza Group’ and no one else.

As in the impugned judgement, the High Court has placed reliance on Bashir Ahmad’s case supra, we deem it appropriate to refer to the judgment delivered by a five member bench of this Court recently decided on 18.07.2016 in Civil Petition No.41/2008 alongwith Civil Appeals No. 2054/2007 & 1208/2015 (Gulshan Bibi and others Vs. Muhammad Sadiq and others), which resolved the conflict between two sets of judgments of three member benches of this Court, including Bashir Ahmad’s case supra. The first set comprised of the cases of Muhammad Akram Vs. Muhammad Yousaf (2009 SCMR 1066), Mumtaz Hussain Vs. Dr. Nasir Khan (2010 SCMR 1254) and Shahabuddin Vs. The State (PLD 2010 SC 725). These cases do not impose any restriction as to category of persons who could only be prosecuted under the provisions of Illegal Dispossession Act, 2005. The second set comprised of cases of Bashir Ahmad Vs. Additional Sessions Judge (PLD 2010 SC 661) and Habibullah Vs. Abdul Manan (2012 SCMR 1533) wherein it was held that only those possessing the credentials and antecedents of ‘land grabbers’ or ‘Qabza Group’ can be prosecuted thereby restricting the scope and applicability of the Illegal Dispossession Act, 2005. The five member bench of this Court in Gulshan Bibi’s case supra while examining both the sets of cases came to the conclusion that it was not the intention of the legislature that only a particular category of persons can be prosecuted under the Illegal Dispossession Act, 2005. Thus the second set of cases was declared not to be a good law. For ease of convenience, the reasons that prevailed with the five members bench are briefly explained below:

2. The substantive provisions of Illegal Dispossession Act, 2005, which describe the offence and the offender are contained in Section 3 of the Act. It reads as follows:

“3. 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 sub-section (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 provision of section 544-A of the Code.”

3. It is evident from the provisions of Section 3 of the Illegal Dispossession Act, 2005 that it describes the offence exhaustively but does not describe the offenders in specific terms. On the contrary, it uses the general terms ‘no one’ and ‘whoever’ for the offenders. The use of such general terms clearly indicates that the widest possible meaning was attributed to the offenders. The three member bench of this Court in Bashir Ahmed’s case supra however has held that under the Illegal Dispossession Act, 2005 only those can be prosecuted who possess the credentials and antecedents of ‘land grabbers’ or ‘Qabza Group’ and none else. In reaching such conclusion, Bashir Ahmed’s case adopted the reasoning contained in the judgment of the Lahore High Court in the case of Zahoor Ahmed Vs. the State (PLD 2007 Lahore 231). The first reason that prevailed with the Lahore High Court in Zahoor Ahmed’s case was the use of the term ‘property grabbers’ in the preamble of the Act, which was made basis to restrict its scope and applicability. We may state that the term ‘property grabbers’ is not one of those terms that is popularly associated with any particular class of offenders such as the terms ‘Land grabbers’, ‘Qabza Mafia’ or ‘Qabza Group’. In fact none of the popular terms which are identified with a specific category of offenders have been used anywhere in the Act. As the term ‘property grabbers’ appearing in the preamble of the Act has been used in general sense, it cannot be identified with any particular category of offenders in order to restrict the scope and applicability of the Illegal Dispossession Act, 2005 to a particular category of offenders. Additionally, the substantive provision of Illegal Dispossession Act i.e. Section 3 expressly uses general terms such as ‘no one’ and ‘whoever’ for the offender. This clearly indicates that the widest possible meaning is to be attributed to these terms. Thus the provisions of Section 3 clearly demonstrate that whosoever commits the act of illegal dispossession, as described in the Illegal Dispossession Act, 2005 against a lawful owner or a lawful occupier, he can be prosecuted under its provisions without any restriction.

4. To reach the conclusion which it did, the Lahore High Court judgment in Zahoor Ahmed’s case apart from using the term ‘property grabbers’ that finds mention in the preamble had also placed reliance on the caption of the Working Paper that was prepared by the law ministry at the time of laying the Illegal Dispossession Bill before the parliament. The caption of the Working Paper states “The object of the proposed Bill is to provide deterrent punishment to the land grabbers and Qabza Group and to provide speedy justice and effective and adequate relief to the victims dispossessed of immovable property by unlawful means….” It can be seen that the terms ‘land grabbers’ and ‘Qabza Group’ that were there in the caption never found their way in any provision of the Illegal Dispossession Act, 2005. The second part of the caption of the Working Paper narrates “….. to provide speedy justice and effective and adequate relief to the victims dispossessed of immovable property by unlawful means….”. In our view the object contained in this second part of the caption of the Working Paper was in fact achieved as is evident from the contents of the substantive provisions of the Act, which are unambiguous and unequivocal and while interpreting them do not lead to any absurdity. In Gulshan Bibi’s case supra the five member bench of this Court had referred to a judgment from English jurisdiction in the case of Pepper Vs. Hart [1992] 3 WLR 1032 wherein it was held that the exclusionary rule whereby reference to Parliamentary materials was prohibited should be relaxed so that the courts may reach the true meaning of the enactment. However, such a conclusion was qualified i.e. it was held that such a course is to be adopted only in situations where the legislation is ambiguous or obscure or while interpreting the provision it leads to an absurdity. While interpreting the scope of the provisions of the Illegal Dispossession Act, 2005 the larger bench of this Court in Gulshan Bibi’s case supra did not find any ambiguity, obscurity or absurdity in the substantive provisions of the Illegal Dispossession Act, 2005 that would have warranted reference to the relevant Parliamentary material.

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