P L D 2010 Supreme Court 661 Present; Mahmood Akhtar Shahid Siddiqui, Mian Saqib Nisar and Asif Saeed

Khan Khosa, JJ BASHIR AHMAD---Petitioner Versus ADDITIONAL SESSIONS JUDGE, FAISALABAD and 4 others---Respondent Civil Petition No.814-L of 2006, decided on 5th March, 2010. (On appeal from the order dated 10-4-2006 of the Lahore High Court Lahore passed in Writ Petition No.3287 of 2006). Illegal Dispossession Act (XI of 2005)------Ss. 3 & 4---Criminal Procedure Code (V of 1898), S.265-A---Constitution of Pakistan (1973), Art. 185 (3)---Illegal dispossession---Co-sharers in land in dispute---Civil dispute---Qabza group or land mafia---Abuse of process of law---Petitioner filed complaint against respondents for allegedly forcibly dispossessing him from land in question---Trial Court in exercise of powers under S.265-K, Cr.P.C., acquitted respondents on the ground that they were co-sharers in land in question, having registered sale-deed in their favour and they were shown as owners in possession in Revenue Record---Validity---No material was available with petitioner to establish that respondents belonged to Qabza group or land mafia or they had credentials or antecedents of being property grabbers---Acquittal of respondents recorded under S.265K, Cr.P.C. by Trial Court was justified and dismissal of petitioner's constitutional petition by High Court was also unexceptionable---Through filing of complaint under Illegal Dispossession Act, 2005, petitioner had tried to transform bona fide civil dispute between parties into criminal case so as to bring weight of criminal law and process to bear upon respondents in order to extract concession from them---Such utilization of criminal law and process by petitioner was abuse of process of law, which could not be allowed to be perpetuated---Supreme Court declined to interfere in judgments passed by High Court as well as by Trial Court---Leave to appeal was refused. Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 rel. Saif-ul-Malook, Advocate Supreme Court for Petitioner. Respondent No.2 in person. Faisal Zaman Khan, Addl. A.-G., Punjab for the State. Date of hearing: 5th March, 2010.

ORDER ASIF SAEED KHAN KHOSA, J.---Through this petition the petitioner has sought leave to appeal against the order dated 10-4-2006 passed by a learned Judge of the Lahore High Court, Lahore whereby Writ Petition No.3287 of 2006 filed by the petitioner was dismissed. 2. The necessary facts giving arise to the present petition are that the petitioner was allegedly dispossessed from a parcel of land on 18-10-2005 and in that regard he filed a complaint against respondents Nos. 2 to 4 under the Illegal Dispossession Act, 2005 on 15-12-2006. The said respondents were summoned by the learned Additional Sessions Judge, Faisalabad seized of the said complaint and a charge was framed against them. Respondents Nos. 2 to 4 submitted an application under section 265-K, Cr.P.C. seeking their acquittal and that application of the respondents was allowed by the learned Additional Sessions Judge, Faisalabad on 6-3-2006 with a consequent acquittal of respondents Nos.2 to 4. The order passed by the learned Additional Sessions Judge, Faisalabad on 6-3-2006 was assailed by the petitioner before the Lahore High Court, Lahore through Writ Petition No.3287 of 2006 but that writ petition was dismissed vide order dated 10-4-2006 against which order the petitioner has sought leave to appeal from this court through the present petition. 3. It has been argued by the learned counsel for the petitioner that respondents Nos. 2 to 4 had been summoned by the learned Additional Sessions Judge, Faisalabad to face a trial in connection with the petitioner's complaint filed under the Illegal Dispossession Act, 2005 after finding sufficient material to proceed against them and, thus, without recording any evidence during the trial the learned Additional Sessions Judge could not have acquitted them by holding that there was no probability of the said respondents' conviction. It has also been contended by him that the petitioner was possessed of sufficient evidence incriminating respondents Nos. 2 to 4 vis-a-vis the offence in issue and, thus, it was premature on the part of the learned Additional Sessions Judge to acquit them and to deny the petitioner an opportunity to prove his allegations against them. It has further been maintained by the learned counsel for the petitioner that the impugned order passed by the learned Additional Sessions Judge had occasioned grave miscarriage of justice and the learned Judge of the Lahore High Court, Lahore had erred in dismissing the petitioner's writ petition filed against that order. 4. After hearing the learned counsel for the petitioner and going through the documents appended with this petition it has been noticed by us that while recording the acquittal of respondents Nos. 2 to 4 upon acceptance of their application submitted under section 265-K, Cr.P.C. the learned Additional Sessions Judge, Faisalabad had observed that the claim of respondents Nos. 2 to 4 regarding ownership and possession of the relevant parcel of land was based upon a sale-deed manifesting alienation in their favour, a Jamabandi showing the said respondents as owners in possession of the disputed land and a Khasra Girdawari reflecting that the said respondents were in possession of the land in issue. The learned Additional Sessions -Judge had also observed in his order dated 6-3-

2006 that a private complaint already stood instituted in respect of commission of some criminal offences and a suit for possession as well as a suit for partition pertaining to the same land were already pending before different Courts between the same parties and, thus, the dispute between the parties over the relevant parcel of land was a bona fide dispute which was already sub judice before the civil and criminal Courts. The relevant sale deed being relied upon by respondents Nos. 2 to 4 had ostensibly made the said respondents co-sharers of the petitioner and co-owners of the land in issue and the pending suit for partition went a long way in supporting the case of respondents Nos. 2 to 4 in that respect. It had been held by a Full Bench of the Lahore High Court, Lahore in the case of Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah. 231 that the Illegal Dispossession Act, 2005 has no application to cases of dispossession between co-owners and co-sharers and also that the said Act is not relevant to bona fide civil disputes which are already sub judice before civil or revenue Courts. It had also been declared by the Full Bench of the Lahore High Court, Lahore in that case that the Illegal Dispossession Act, 2005 was introduced in order to curb the activities of Qabza groups/property grabbers and land mafia. It has been conceded before us by the learned counsel for the petitioner that no material is available with the petitioner to establish that respondents Nos. 2 to 4 belonged to any Qabza group or land mafia or that they had the credentials or antecedents of being property grabbers. In view of the discussion made above the impugned acquittal or respondents Nos. 2 to 4 recorded by the learned Additional Sessions Judge, Faisalabad upon acceptance of their application submitted under section 265-K, Cr. P. C. has been found by us to be entirely justified and dismissal of the petitioner's writ petition by the learned Judge of the Lahore high Court, Lahore has also been found by us to be unexceptionable. In the circumstances of this case mentioned above we have entertained an irresistible impression that through filing of his complaint under the Illegal Dispossession Act, 2005 the petitioner had tried to transform a bona fide civil dispute between the parties into a criminal case so as to bring the weight of criminal law and process to bear upon respondents Nos. 2 to 4 in order to extract concessions from them. Such utilization of the criminal law and process by the petitioner has been found by us to be an abuse of the process of law which cannot be allowed to be perpetuated. 5. For what has been discussed above this petition is dismissed and leave to appeal is refused.

M.H./B-3/S

Petition dismissed.