1. The legal question before this larger bench to settle is whether anyone who commits the offence described in Section 3 of the Illegal Dispossession Act, 2005 can be prosecuted as held by this Court in 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), hereinafter referred to as the first set of cases or the scope and applicability of the Illegal Dispossession Act, 2005 is restricted and only those can be prosecuted who hold the credentials and antecedents of a land grabber or Qabza Mafia i.e. those who are known, acknowledged and established property grabbers as held by this Court in the case of Bashir Ahmad Vs. Additional Sessions Judge (PLD 2010 SC 661) and followed in the case of Habibullah Vs. Abdul Manan (2012 SCMR 1533), hereinafter referred to as the second set of cases.
2. We shall examine the ratio of the second set of cases first, which as a precondition require that the complaint under Illegal Dispossession Act, 2005 can only be maintained if the accused possesses all the credentials and antecedents of being a land grabber or member of Qabza Group. The terms ‘land grabbers’ or ‘Qabza Group’ or ‘Qabza Mafia’ in ordinary parlance refer to a distinct class of offenders who usurp property of others in an organized manner. They mostly target unoccupied or deserted urban properties belonging to the Federal Government, the Provincial Governments, Municipal authorities, autonomous or semi-autonomous bodies, Trusts or Waqfs and at times even properties belonging to private persons. By resorting to various forms of fraud and forgery the professional land grabbers or Qabza Mafia first get the targeted property transferred in the official records in the name of a person of their confidence and then create third party interest thereon. In doing so the face of the professional land grabbers or Qabza Group remains hidden. They indulge in land grabbing through their proxy so that the real beneficiary of land grabbing could not be identified. With every new act of illegal dispossession the face of the proxy keeps changing. In every case where ratio of the second set of cases is to be applied it would be incumbent upon the complainant to establish that the accused belongs to a land Mafia or Qabza Group. The accused in reply almost invariably is not going to admit that he holds such a record. The denial of such a plea would serve as best defence against his prosecution. In all such cases extrinsic evidence would be required to establish that the accused possesses all the credentials of a professional land grabber or Qabza Mafia.
Such kind of evidence would certainly not be relatable to the incident reported in the complaint but to an offence of illegal dispossession committed by the accused sometime in the past in relation to some property. This evidence would depend on the testimony of persons who may not be known to the complainant at all. The only alternative to this would be that in some judicial pronouncement, the accused has already been declared to be a known, acknowledged and established land grabber or member of Qabza Group. Anything short of classifying the accused as a known, acknowledged and established land grabber would not be sufficient to prosecute him under the provisions of Illegal Dispossession Act, 2005. The complainant would thus be required to cross this hurdle first before the court assumes jurisdiction over the accused with regard to the incident reported in the compliant. Failure to do so would result in the dismissal of the case without even examining the truthfulness of the complaint that was filed for adjudication. Thus in every case where the ratio of the second set of cases is to be applied, the existence of judicially acceptable material on the record would be necessary to satisfy the Court that the accused possesses all the credentials and antecedents of being a member of ‘land grabbers’ or ‘Qabza Group’ or ‘Qabza Mafia’ otherwise the complaint filed under the provisions of Illegal Dispossession Act, 2005 would not be maintainable. In putting such a restricted interpretation on the scope and applicability of the Illegal Dispossession Act, 2005, the second set of cases has cast an arduous burden upon the complainant to establish existence of a fact of which he may not even have any knowledge or the means or the capability to prove it in a court of law.
3. Now the question that needs to be examined is whether the Legislature did intend that the complainant shall first establish that the accused possesses the credentials or antecedents of land grabbers or Qabza Group before his complaint could be entertained by the court. In order to examine this question we shall first examine the contents of the Working Paper for the reason that the Working Paper has been discussed in one of the impugned judgments, reasoning of which was adopted by this Court in the second set of cases. This Working Paper was prepared by the law ministry at the time of laying the Illegal Dispossession Bill before the parliament. It was captioned “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….” The terms ‘land grabbers’ and ‘Qabza Group’ appearing in the Working Paper were heavily relied upon in one of the impugned judgments in reaching the conclusion that the accused must possess the credentials or antecedents of land grabbers or Qabza Group before his complaint could be entertained by the court. However, the terms ‘land grabbers’ and ‘Qabza Group’ appearing in the Working Paper did not find their way in any provision of the Illegal Dispossession Act, 2005. Not even in its preamble. Only the term ‘property grabbers’ was used in the preamble and even this term was not used anywhere else in the entire enactment. By mere use of the term ‘property grabbers’ in the preamble, the scope and applicability of the Illegal Dispossession Act, 2005 was restricted by the second set of cases to a certain class of offenders and the relief sought in the complaint was held not to be available to the victims of illegal dispossession against those who do not fall under such class of offenders.
In our society the acts of illegal dispossession are largely committed at the behest of the persons who are rich, powerful feudal lords, politicians, builders, government functionaries or the persons who head large communities and on account of their influence and power are placed in domineering positions either over their fellow community members or over less powerful communities living in the area of their influence. In terms of the ratio of the second set of cases not every influential, rich or powerful person who illegally grabs someone’s property is amenable to the provisions of the Illegal Dispossession Act, 2005 unless, as a condition precedent, he possesses the credential and antecedents of ‘land grabber’ or ‘Qabza Group’ or ‘Qabza Mafia’. We may mention here that before the Illegal Dispossession Act, 2005 was enacted, any person who illegally dispossessed a lawful owner or occupier used to face either civil litigation which takes years together before justice is delivered. Even where criminal proceedings were lodged they were initiated under the provisions of Pakistan Penal Code in the court of a Magistrate, which too did not prove to be an effective remedy. Thus until the Illegal Dispossession Act, 2005 came into effect, the acts of dispossession continued to take place without any efficacious, effective and speedy remedy made available to the victims. Such acts at times translated into serious criminal offences including murders. To suppress such mischief was the main object that was to a greater extent achieved through Illegal Dispossession Act, 2005.
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