2016 S C M R 1931

[Supreme Court of Pakistan]

Present: Amir Hani Muslim, Mushir Alam, Maqbool Baqar, Faisal Arab and
Khilji Arif Hussain, JJ

Shaikh MUHAMMAD NASEEM---Appellant

Versus

Mst. FARIDA GUL---Respondent

Criminal Appeal No. 04-K of 2012, decided on 22nd July, 2016.

(On appeal against the judgment dated 30.09.2011 passed by the High Court of Sindh,
Karachi in Cr. Revision Application No. 07/2011)

(a) Illegal Dispossession Act (XI of 2005)---

----S. 3---Illegal possession of property---Complaint under Illegal Dispossession Act,

2005---Offenders that could be prosecuted under the Illegal Dispossession Act, 2005
could not be restricted to only those who possessed the credentials and antecedents of
'land grabbers' or 'Qabza Group'---Provisions of S. 3 of the Illegal Dispossession Act,
2005 clearly demonstrated that whosoever committed the act of illegal dispossession,
as described in the said Act against a lawful owner or a lawful occupier, he could be
prosecuted under its provisions without any restriction. [Muhammad Akram v.
Muhammad Yousaf (2009 SCMR 1066), Mumtaz Hussain v. Dr. Nasir Khan (2010
SCMR 1254) and Shahabuddin v. The State (PLD 2010 SC 725) held to be good law]--
-[Bashir Ahmad v. Additional Sessions Judge (PLD 2010 SC 661) and Habibullah v.
Abdul Manan (2012 SCMR 1533) declared to be not good law].

Provisions of section 3 of the Illegal Dispossession Act, 2005 described the offence of
Illegal possession of property exhaustively but did not describe the offenders in
specific terms. On the contrary, said section used the general terms 'no one' and
'whoever' for the offenders. Use of such general terms clearly indicated that the widest
possible meaning was attributed to the offenders.

Terms such as 'Land grabbers', 'Qabza Mafia' or 'Qabza Group' identifying a specific
category of offenders had not been used in the Illegal Dispossession Act, 2005. The
term 'property grabbers' appearing in the Preamble of the said Act had been used in
general sense, it could not 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.

Provisions of section 3 of the Illegal Dispossession Act, 2005 clearly demonstrated that
whosoever committed the act of illegal dispossession, as described in the said Act
against a lawful owner or a lawful occupier, he could be prosecuted under its
provisions without any restriction.

Muhammad Akram v. Muhammad Yousaf 2009 SCMR 1066; Mumtaz Hussain v. Dr.
Nasir Khan 2010 SCMR 1254 and Shahabuddin v. The State PLD 2010 SC 725 held to
be good law.

Bashir Ahmad v. Additional Sessions Judge PLD 2010 SC 661 and Habibullah v.
Abdul Manan 2012 SCMR 1533 declared to be not good law.

(b) Illegal Dispossession Act (XI of 2005)---

----S. 3---Illegal possession of property---Complaint under Illegal Dispossession Act,

2005---Maintainability---Civil litigation with regard to illegal dispossession from
immoveable property pending in court between the parties---Irrespective of any such
civil litigation that may be pending, where an offence, as described in the Illegal
Dispossession Act, 2005, had been committed, the proceedings/complaint under the
said Act could be initiated as the same would be maintainable in law. [Findings in
Zahoor Ahmed v. The State (PLD 2007 Lahore 231) and Bashir Ahmad v. Additional
Sessions Judge (PLD 2010 SC 661) were held to be not sustainable in law].

Any Act which entailed civil liability under civil law as well as criminal penalty under
criminal law, such as the Illegal Dispossession Act, 2005, a person could be tried under
both kinds of proceedings, which were independent of each other. Once the offence
reported in the complaint stood proved against the accused within the confines of the
provisions of the Illegal Dispossession Act, 2005 then he could not escape punishment
on the ground that some civil litigation on the same issue was pending adjudication
between the parties.

Irrespective of any civil litigation that may be pending in any Court, where an offence,
as described in the Illegal Dispossession Act, 2005, had been committed, the
proceedings under the said Act could be initiated as the same would be maintainable in
law.

Zahoor Ahmed v. The State PLD 2007 Lah. 231 and Bashir Ahmad v. Additional
Sessions Judge PLD 2010 SC 661 held to be not sustainable in law.

Nemo for Appellant.

Abdullah A. Munshi, Advocate Supreme Court and K. A. Wahab, Advocate-on-

Record for Respondent.

Shahdat Awan, P.G. for the State.

Date of hearing: 22nd July, 2016.

JUDGMENT
FAISAL ARAB, J.---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 v. 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
judgment, 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 along with Civil Appeals
Nos. 2054/2007 and 1208/2015 (Gulshan Bibi and others v. 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 v. Muhammad Yousaf (2009 SCMR 1066), Mumtaz
Hussain v. Dr. Nasir Khan (2010 SCMR 1254) and Shahabuddin v. 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 v. Additional Sessions Judge (PLD
2010 SC 661) and Habibullah v. 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 subsection (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."

(Underlining is ours to lay emphasis)

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 v. 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 v. 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. In
paragraphs 6 to 8 of Gulshan Bibi's case the five member bench of this Court held as
follows:-

"5. A bare reading of subsection (1) of section 3 the Illegal Dispossession Act,
2005 shows that terms like dispossess, grab, control or occupy have been used
which clearly mean that illegal dispossession in all forms have been made an
offence and by the use of the terms 'no one' and 'whoever' in subsections (1)
and (2) of section 3, anyone and everyone who commits such an offence was
made liable for punishment. The very use of the terms like 'no one' and
'whoever' are clearly intended to convey the widest possible meaning for the
offenders. Thus without any distinction any person who illegally dispossesses,
grabs, controls or occupies property of a lawful owner or occupier shall be
liable for prosecution under the provisions of the Illegal Dispossession Act,
2005. The second set of cases has however restricted the scope and application
of the Illegal Dispossession Act, 2005 to a particular class of offenders only i.e.
those who possess the credentials or antecedents of being 'land grabbers' or
Qabza Group by placing reliance on the term 'property grabbers' that appears in
the preamble of the Illegal Dispossession Act, 2005. From the mere use of the
term 'property grabbers' in the preamble one cannot reach the conclusion that
the legislature intended that a complainant must first establish that the accused
possesses the credentials or antecedents of being a professional land grabber or
member of a Qabza Group in order to maintain his complaint under the said
Act. The term 'property grabber' can be construed to refer to anyone who has
committed the act of grabbing someone's property illegally. Limiting the scope
and application of the provisions of the main enactment to a particular class of
offenders and that too on the basis of a term used in the preamble would not
only deflect the Court to go into issues which are not subject matter of the
complaint that is before it but at the same time such an interpretation would
violate the cardinal principle of the statutory construction that where the
language of the substantive provision of an enactment is clear and not open to
any doubt then the preamble cannot be used to curtail or enlarge its scope. Thus
where the enactment is clear and unambiguous, the preamble cannot be used to
undermine the clear meaning of the provisions of the Act or give it a different
meaning. Only where the object or meaning of an enactment is not clear, the
preamble may be resorted to in order to explain it. So the preamble is to be
resorted only to explain and give meaning to any provision of the enactment
where its language is open to doubt or is ambiguous or susceptible to more than
one meaning. In the presence of the general terms like 'anyone' or 'whoever'
that have been used to describe the offender, which are clear and wide in their
application, the scope of the Illegal Dispossession Act, 2005 cannot be confined
to any particular class of offenders.

6. It would also be not out of place to mention here that reference to Legislative
history is permissible only as an aid to construction of legislation which is
ambiguous or obscure or the literal meaning of which leads to an absurdity i.e.
from the text of a statute, the court is unable to decipher the real intent of the
Legislature. Where the text is clear and there exists no ambiguity, resort to the
legislative history may actually be counter-productive. This is because
legislative history contains sporadic accounts and arguments made by the
parliamentarians and the final outcome of debates and arguments made in the
parliament could be much different. Therefore, the real intention of the
parliament is to be first and foremost ascertained from the provisions of the
enactment itself and frequent resort to the legislative history is not warranted.
In this regard the case of Pepper v. Hart [1992] 3 WLR 1032, a judgment from
English jurisdiction, can be referred with considerable advantage.

7. From what has been discussed above it is evident that no provision of the
Illegal Dispossession Act, 2005 imposes any precondition on the basis of which
a particular class of offenders could only be prosecuted. The Act aims at
granting efficacious relief to lawful owners and occupiers in case they are
dispossessed by anyone without lawful authority. Section 3(1) of the said Act
by using the terms 'anyone' and 'whoever' for the offenders clearly warns all
persons from committing the offence described therein and when found guilty
by the court are to be punished without attaching any condition whatsoever as
to the maintainability of the complaint. So all that the Court has to see is
whether the accused nominated in the complaint has entered into or upon the
property in dispute in order to dispossess, grab, control, or occupy it without
any lawful authority. Nothing else is required to be established by the
complainant as no precondition has been attached under any provision of the
said Act which conveys the command of the legislature that only such accused
would be prosecuted who holds the credentials and antecedents of 'land
grabbers' or 'Qabza Group'. It does not appeal to reason that for commission of
an offence reported it the complaint filed under the Illegal Dispossession Act,
2005 the Legislature would intent to punish only those who hold history of
committing a particular kind of offence but would let go an accused who
though has committed the offence reported in the complaint but does not hold
the record of committing a particular kind of offence. In our view trial of a case
is to be relatable to the property which is subject matter of the complainant,
pure and simple. Any past history of the accused with regard to his act of
dispossession having no nexus with the complaint cannot be taken into
consideration in order to decide whether the accused stands qualified to be
awarded a sentence under the Act or not. Once the offence reported in the
complaint stands proved against the accused then he cannot escape punishment
under the Illegal Dispossession Act, 2005.
 8. In view of the above discussion we conclude that in any proceedings initiated
under Illegal Dispossession Act, 2005, the issues which fall for decision would
be whether the offence against a lawful owner or occupier, as described in the
complaint, has taken place and whether it is the accused who has committed it
without any lawful authority. Anyone found committing the offence described
in section 3 would be amenable to prosecution under the provisions of Illegal
Dispossession Act, 2005 and no past record of the accused needs to be gone
into by the court."

5. In the impugned judgment it was also held that where civil litigation with regard to
illegal dispossession from immoveable property is pending between the parties, the
proceedings under the Illegal Dispossession Act, 2005 cannot be maintained. This
finding is also based on the decision of the Lahore High Court in Zahoor Ahmed's case
(PLD 2007 Lahore 231, reasoning of which was adopted by three member bench of
this Court in Bashir Ahmed's case (PLD 2010 SC 661). We are of the view that such a
finding is also not sustainable in law. Any act which entails civil liability under civil
law as well as criminal penalty under criminal law, such as the Illegal Dispossession
Act, 2005 then a person can be tried under both kinds of proceedings, which are
independent of each other. Once the offence reported in the complaint stands proved
against the accused within the confines of the provisions of the Illegal Dispossession
Act, 2005 then he cannot escape punishment on the ground that some civil litigation on
the same issue is pending adjudication between the parties. No one can be allowed to
take law in his own hands and unlawfully dispossess an owner or lawful occupier of an
immovable property and then seek to thwart the criminal proceedings initiated against
him under the Illegal Dispossession Act, 2005 on the pretext that civil litigation on the
issue is pending adjudication between the parties in a court of law. Therefore,
irrespective of any civil litigation that may be pending in any Court, where an offence,
as described in the Illegal Dispossession Act, 2005, has been committed, the
proceedings under the said Act can be initiated as the same would be maintainable in
law.

6. The above are the detailed reasons of our short order of even date whereby while
relying on five Member Bench judgment of this Court dated 18.07.2016 rendered in
the case of Gulshan Bibi v. Muhammad Sadiq in Civil Petition No. 41/2008 and Civil
Appeals Nos.2054/2007 and 1208/2015, this appeal was disposed of and the matter
was remanded back to the learned Trial Court for its disposal on merits.

MWA/M-52/SC Order accordingly.

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