Illegal Dispossession Act (XI of 2005).

 Illegal Dispossession Act (XI of 2005).

" QABZA GROUP , LAND GRABBER OR LAND MAFIA".

Markable decision of Hon. Supreme court of Pakistan reported in,

2010 scmr 1254

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali, Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

MUMTAZ HUSSAIN---Appellant

Versus

Dr. NASIR KHAN and others---Respondents

Criminal Appeal No.423 of 2008, decided on 2nd December, 2009.

(Against order dated 28-1-2008 of High Court of Sindh, Karachi, passed in Criminal Revision No.73 of 2007).

Per Rahmat Hussain Jafferi; Anwar Zaheer Jamali and Khilji Arif Hussain, JJ agreeing---

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

----S.4---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether a court exercising jurisdiction under Illegal Dispossession Act, 2005, was empowered to examine question of title as to property or whether its jurisdiction was premised only upon act of illegal dispossession of person in possession; and whether complaint under Illegal Dispossession Act, 2005, could only be filed against land grabbers and a person claiming bona fide title of property was not amenable to jurisdiction of court under Illegal Dispossession Act, 2005, despite having dispossessed an occupant forcibly and without following due process of law.

(b) Interpretation of statutes---

----Preamble---Scope---Preamble of an Act does not govern provisions of that Act, if those are unambiguous and clear---Preamble can be taken into consideration in discovering purpose of the statute and aid can be taken in interpreting provisions of the Act, if they are ambiguous.

(c) Words and phrases---

----"No one "---Meaning: No person; nobody.

Concise Oxford Dictionary rel.

(d) Words and phrases---

----"Whoever"---Meaning: Any person or persons.

Concise Oxford Dictionary rel.

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

----S. 3 & Preamble---Prevention of illegal possession of property'---Scope---Provision of S.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---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.

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

----S.3---Prevention of illegal possession of property---Words `dispossess', `grab', `control' and `occupy'---Connotation---Cognizance by court---Pre-conditions---For the purposes of attracting provisions of S.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---Meaning of the words clearly demonstrate that if anybody controls or holds unlawful or illegal possession of the property at the time of enactment then he would come within the ambit of Illegal Dispossession Act, 2005---Complaint can validly be filed against such person by the occupier or owner of the property---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 S.4 of Illegal Dispossession Act, 2005.

Concise Oxford Dictionary; Merritt's Estate, 46 N.Y.S.2d, 497, 505; Black's Law Dictionary and People v. Wilkinson, 56 Cal. Rptr.261, 264., 246 C.A. 2d. Supp.906 rel.

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

----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S.145---Illegal dispossession---Criminal proceedings---Question of title---Jurisdiction of court---For the purpose of examining question of title in respect of property, court has to simply form opinion as to whether prima facie any party is coming within the ambit of definition mentioned in S. 3 of Illegal Dispossession Act, 2005---If court forms such opinion from material placed before it, then it can proceed with matter or otherwise, as the case may be---Similar procedure is adopted by Magistrate, while exercising powers conferred upon him under S.145 Cr. P. C., which is normally required to be adopted in such proceedings.

Shah Muhammad v. Haq Nawaz PLD 1970 SC 470 rel.

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

----Ss 3 & 4---Penal Code (XLV of 1860), S.441---Illegal dispossession---Restoration---Pendency of civil litigation---Effect---Appellant claimed to be the owner of plot in question and alleged that respondents had dispossessed him from the plot---Before filing of application under S. 4 of Illegal Dispossession Act, 2005, there was civil litigation between the parties in which their titles were questioned and status quo order was passed by the court---During pendency of civil litigation, proceedings under S. 4 of Illegal Dispossession Act, 2005, were initiated---Validity---Offence of illegal dispossession as provided under S.3 of Illegal Dispossession Act, 2005, was aggravated form of offence under S.441 P.P.C., therefore, it could not be said that act of dispossession was a new offence under Illegal Dispossession Act, 2005---As question of title of property was already pending before competent court of civil jurisdiction before filing of the complaint, therefore, Supreme Court declined to interfere in the matter---After decision of civil suit in favour of appellant, he could approach the court under S.4 of Illegal Dispossession Act, 2005---Appeal was dismissed.

Zahoor Ahmed v. State PLD 2007 Lah.231; Noor Zada v. Muhammad Khalid 2007 PCr.LJ 891; A.G. v. H.R.H. Prince Augustus 1957-1 All England Law Reporters page 49; Pakistan Railway v. Abdul Haqique 1991 SCMR 657; Shaukat Baig v. Shahid Jamil PLD 2005 SC 530; Rahim Tahir v. Ahmed Jan PLD 2007 SC 423; Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404; Muhammad Akram v. Muhammad Yousaf 2009 SCMR 1066 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

Rahim Tahir v. Ahmed Jan PLD 2007 SC 423 and Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404 rel.

Per Khilji Arif Hussain, J:-

(i) Interpretation of statutes---

----Preamble---Scope---Preamble of an Act does not control or govern the Act and is not an enacting part of the Act but may recite the ground and cause of making that statute, if provisions of the Act are clear and unambiguous.

(j) Interpretation of statutes---

----Intention of Legislature---Scope---While interpreting an Act, the intent of Legislature is of supreme importance---Cardinal rule of construction of Acts of Parliament is that the words of the Act should be construed according to intention expressed in the Acts themselves---Word "intent" essentially include two concepts: That of purpose and that of meaning---In many cases the court endeavours to ascertain legislative purpose but only as a step in process of discovering legislative intent and it is possible that legislative intent and legislative purpose may coincide---Law maker may have several purposes in mind when they enact a given law and the fact which can be taken into account in ascertaining intention of Legislature is history of the Act, reason which led to passing of the Act, mischief which had to be cured, as well as cure proposed and also other provisions of the statute---Legislative intent can always be gathered either from express language of Statute or by necessary implications---If words of Statute are themselves clear and unambiguous, no more is necessary to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of Legislature---Objects made Reasons of a Statute is to be looked into as an extrinsic aid to find out legislative intent only when the meaning of Statute by its ordinary language is obscure or ambiguous---If words used in a Statute are clear and unambiguous and Statute itself describes intention of Legislature then in such case, it would not be permissible for court to interpret Statute by examining Object and Reasons of Statute.

Pepper Inspector of Taxes v. Hart (1993)1 All ER 42 and AIR 1952 SC 369 ref.

(k) Interpretation of statutes---

----Construction of statute---Principle---Method of construction of statute is not to take particular words and give them a preconceived meaning, which one may have to displace or modify---Statute is to be read as a whole and ask oneself the question, in this statute, in this context, relating to the subject matter, what is the true meaning of the word---Statute is not open to construct as a matter of course, it is open only where language used in Statute requires interpretation i.e. where the Statute is ambiguous or bears two or more constructions or is of such doubtful obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.

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

----S.3---Specific Relief Act (I of 1877), S.9.,--Illegal dispossession---Remedy---`Qabza group' and `land grabbers'---Scope---Remedy under S. 9, Specific Relief Act, 1877, is admissible to any person (whether owner or otherwise), who has been dispossessed from premises in his possession without due process of law---Remedy under Illegal Dispossession Act, 2005, cannot be restricted only against `Qabza group'---If it is accepted that remedy under Illegal Dispossession Act, 2005, is available only against professional land grabbers, though Statute has not defined what is meant by `land grabbers' or `Qabza group' then a person, who illegally and unlawfully grabs or dispossesses or occupies property from a lawful owner for the first time, cannot be prosecuted under Illegal Dispossession Act, 2005, merely because there is no such previous history of him to call him a man professionally engaged in the activity of land grabbing.

Nemo for Appellant.

Nemo for Respondents Nos. 1 and 2.

Shahadat Awan, P.G. Sindh for Respondent No.3.

Abid S. Zuberi, Advocate Supreme Court and Sumaiya Zaidi, Advocate Supreme Court as Amici Curiae

Date of hearing: 2nd December, 2009.