Karim Bakhsh Vs Zahir Shah Subedar Malakand Levies and others

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JI,DGMENT SIIEET

IN THE PESHAWAR IIIGE CO['RT,

MTNGORA BENCII (DAR-ur-Q AZA),SWAT (.Iudtcial Departmen)

1.\il.P No. 737-1W2020 with Interim Relief (Karim Bakhsh Vs. Zatrir Shatr Subedar Malakand kvies and others)

2, w.P o.136 6-]N.U2020 (Saeed Ullah Vs. Rahim Shah and others)

3.\il.P No. 6-M/2021 (Hayat-ur-Rehman and another Vs. The State and others)

4.W.P No. 714-l\I/2020 (Aziz-ur-Rehman Vs. Muhammad Roaz Khan and others)

Present.' IWS Iftikhar Ahmad (Senior), Rahman Ali Khan, Barrister Dr. Adnan Khan and Abdul Jalil, Advocates for the petitioners.

Mr. Said Muhammad Durrani, Advocate for the private respondents in WP No.6-1W2021.

Mr. Abdul Nasir, Advocate as amicus curiae.

Mr. Razauddin Khan, Addl;A.G for the State.

Date of hearing: 03.03.2021

JUDGMENT

WIOAR AIIMAD. J.- Throu gh this judgment, we intend to decide a preliminary question regarding maintainability of the writ petitions bearing Nos. 737-IW2020, 1366-M12020, 6-Ml 2021 and7l4-W2020.

Abdul S.boov' (D.B.) Hotr'bl.lur, Jutllc. Muh.mm.d Nrtlr Mrbfooz Hon'bl. Mr. Jutalc. Wlqrr Ahmrd

2.While hearing the cases in limine, the guestion regarding maintainability of the instant writ petitions required determination for the reason that Section 8-A has been inserted in the Illegal Dispossession Act, 2005 (hereinafter referred to as the "Act") vide the Illegal Dispossession (Amendment) Act, 2017 and thereby a forum of appeal had been provided. All these cases except W.P No. 6-W2021 have been arising out of sunmary rejection of the complaints, whereas, the above-mentioned writ petition has been arising out of order dated 05.12.2020 of leamed Additional Sessions Judge Malakand at Dargai, whereby complaint of petitioners had been dismissed and the accused facing trial (respondents No. 2 & 4 to 6) as well as the absconding accused (respondent No. 3) had been acquitted of the charges leveled against them. The question that has cropped up before this Court was, "whetlter an order whereby complaint filed under section 3 of the Act is summarily rejected would be appealable or not?"

3.Section 8-A of the Act provided;

"!\;!B@! Any order made under sub- section (2) aud sub-section (3) of Section 3 and sub-section (1) of Section 8 shall, within thirty days of the order' be appealable before the High Court."

Abdul Srbooh/r (D.8.) Ho!'blc Mr.Jurdc. MuhrEmrd N.tlr Mrtfooz Ho!'bl. Iltr. Jurdcc wlqrr Ahm.d

Since, specific clauses had been

mentioned by the legislature while making the orders passed there-under appealable, therefore certain confusion existed whether an order of conviction passed under sub-section (2) and sub- section (3) of Section 3 ofthe Act and restoration ofpossession under sub-section (l) of Section 8 of the Act (specified in the amending act) would only be appealable or other orders passed under the Act would also be appealable?

4.Learned counsel for petitioners ln most of these cases had argued that scope of Section 8-A of the Act had been kept limited by the legislature and therefore impugrred orders in the constitutional petitions had not been appealable.

They had been unanimous that except order of conviction passed by a Court under sub-section (2) and sub-section (3) of Section 3 of the Act, other orders would not be appealable and that they had therefore filed writ petitions against said orders.

5.Leamed Addl:A.G appearing on

behalf of the State has however been contending that a remedy of appeal had been provided by way ofSection 8-A ofthe Act and therefore the instant Abdul Srbooh/i (D.B) Hoo'blc Mr. Jurdcc MuhrEDrd Ndr M.hfooz Hoo'bl. Mr. Juttlcc wlq.r Ahord

constitutional petitions had not been maintainable as all the impugned orders had been covered by t}re words 6'any order" used in Section 8-A ofthe Act.

6.Mr. Abdul Nasir Advocate, leamed amicus curiae appointed in one of the cases (W.P No. 6-N{/2021) also relied upon a Single Member Bench judgment of this Court passed in Cr.M No. 3-1W2019 (Leave to appeal) and contended that appeals lie against (any order", which wordings should be construed liberally and that all the orders passed under the Act would be appealable under section 8-A ofthe Act.

7.We have heard arguments of leamed amicus curiae, leamed counsel for the parties and learned Addl:A.G appearing on behalf ofthe State.

8.Section 3 of the Act provided for preventing illegal dispossession from immovable property and has also provided punishment for contravention ofthe provision thereof. Said Section being relevant is reproduced hereunder for ready reference;

DIgglqt-g[ (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

Abdul Srbooh/r (Ir.B.) Hor'bL Mr. J[6cc MulrDDrd N$lr M.tfooz llor'blc Mr. Jurtlc. Whrr ALErd

intention to dispossess grab, control or occupy the property from owners or occupier of guch property.

(2)Whoever contravenes the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be llable 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 victlm of the offence shall also be compensated in accordance with the provision of Section 544-A ofthe Code.

(3)Whoever forcibly and wrongfully dispossesses rny owner or occupier of any property and his act does not fall withln sub-section (1), shall be punished with imprisonment which may extend to three yeon, or with fine or with both, in addition to any other punishment to whlch he may be liable under any other law for the time being in force. The person dispossessed shall also be compensated in accordance with provisions ofsection 544-A ofthe Code."

9.The above reproduced Section has been providing for definition of the offence of illegal dispossession as well as furnishing penalty for contravention thereof. The punishment provided under subsection (2) of Section 3 of the Act has been covering the case of contravention of the dictates of subsection (l) of Section 3 of the Act.

Subsection (3) of Section 3 of the Act covers all the rest of cases of forcible and wrongful dispossession. Section 8 of the Act provided for the remedy ofrestoration ofpossession in the cases of wrongful dispossession from immovable property Abdul Srbooh/' (D.8,) Ho!'blc Mr. Jurdc. Muh.EDrd Nulr M.ifooz Ho!'bL Mr, Jurdcc Wh.r Aiurd

as provided in Section 3 of the Act. Section 8-A of the Act has made all the orders passed under subsections (2) and (3) of Section 3 of the Act as well as orders passed for restoration of possession under subsection (l) of Section 8 of the Act as appealable.

10.For interpreting Section 8-A of the Act so as to furd its true intent, purpose and scope, we would be studying it according to both the literal as well as purposive rules of interpretation. To discem the scope of Section 8-A of the Act, we would first interpret it according to the literal rule of construction. Section 8-A of the Act starts with the connotation "any order madett. The word (anytt is a word of vast amplitude. ttAny" has been explained in Oxford Dictionary in its 12& edition

AS;

"To refer to one or some of a thing or number of things, no motter how much or how many.tt

Hon'ble Supreme Court of Pakistan

while giving its judgment in the case of Government of NWFP throush Chief Secretarv and another vs Muhammad Irshad and 3 others reported as PLD 1995 Supreme Court 281, has Abdul Srbooh/r (Ir.B.) Hoo'blc Mr. Jutdc. Muh.EDrd Nulr M.hfooz Ho!'bk Mr. Jurdcc wh.r AtD.d

also held that the word ('any" is ordinarily used to enlarge the amplitude of the term to which it is attached. Similarly, in the matter of Reference No.

2 of 2005 bv the President of Pakistan reported as PLD 2005 Supremc Court 873 at 951 while interpreting Article 186 of the Constitution, the connotation t(any question of law" conferring advisory jurisdiction upon the Supreme Court of Pakistan was interpreted as having widened jurisdiction of the Court and made it more comprehensive in its scope and thereby covering both the questions oflaw that had arisen as well as the question of law that was likely to arise.

11.Legislature has purposely used the word ttany" because it had been cognizant of the fact that an entire mechanism relating to filing, scope and the categories of appealable orders had not been fumished in the Act (like it stood provided under Cr. PC). The legislature therefore intended to cover the full spectrum of orders passed under subsections (2) and (3) of Section 3 of the Act as well as all the orders passed under subsection (l) of Section 8 of the Act. When we say that the full spectrum of orders passed there-under, it cannot then be limited to orders of conviction passed under Abdrl S.boot/r (D,r,) Ho!'tlc Mr. rurd.. Muhlrrd Nrtlr Mrifoo. Hor'bh Mr. Jutdc. Wh.r Allld

subsections (2) and (3) of Section 3 of the Act or affirmatively making an order for restoration of possession under subsection (l) ofSection 8 ofthe Act. It would include all the orders passed under said provision of law including the refusal to pass such orders there-under. Therefore, when allegations of commission of an offence under section 3 ofthe Act are brought before a competent Court, then there may emerge two situations, one is that the Court finds those allegations substantially true and proved beyond reasonable doubt, and then pass an order ofconviction under subsection (2) or subsection (3) of Section 3 of the Act; the other situation may be that when a Court entertains reasonable doubts that the prosecution or complainant has failed to prove case against the respondenUaccused, then in that case the Court would naturally pass an order for acquittal and would hold that contravention of the provisions of Section 3 of the Act have not been proved. The latter case would also be covered in the definition of the words ttany ordert' and would therefore be appealable under section 8-A of the Act. Another scenario which is more pertinent to the case in hand has been that a person comes up Abdul Srboob/r (D.B.) Hon'bl. Mr. Julalc. MubrDmrd N..lr M.hfooz Hon'bl. Mr. Juttlc. Whrr AhD.d

with a complaint of commission of contravention of the provisions of Section 3 of the Act. The Court marks such complaint for investigation under section 5 of the Act, wherein the investigation report is submitted and the Court comes to the conclusion that there has been no substance in the allegations of illegal dispossession as levied in the complaint and dismiss tle same summarily. In that case also, the Court gives a finding, on the basis of material before it, that the allegations of contravention of provisions of subsection (l) of Section 3 of the Act as well as wrongful dispossession alleged otherwise have not been committed. Such order would also be considered an order made under subsections (2) and (3) of Section 3 of the Act. It also needs mention here that Section 5 of the Act provides for investigation but it has not provided for powers of the Court to dismiss a complaint in a summary manner. We can therefore easily say that the order of summary dismissal of complaint has not been an order under section 5 or any other provision of the Act but an order made under section 3 of the Act.

12.Subsection (2) ofSection 3 ofthe Act has also been containing general words like it Abdul Srbooh/r (D.B,) Hon'bl. Mr. Jurdc. MuiroDrd Nrdr Mrtlooz Hon'b!. Mr. Ju.dc. Wh.r AtrEad

makes an act punishable because of contravention of the provision of subsection (l) of Section 3 of the Act. When the Court say that contravention of the provision of subsection (l) of Section 3 ofthe Act had not taken place - whether it is after a full- fledged trial or after the investigation is conducted and the person has not yet been indicted - it would carry same effect that the Court has held that a case of contravention of subsection (l) of Section 3 of the Act has not been existing. In such a situation, it would equally be an order under subsection (2) or subsection (3) of Section 3 of the Act, for the purpose of Section 8-A of the Act. It becomes clear that it was for this very reason of intending to cover all t}re orders passed under subsections (2) and (3) of Section 3 of the Act that the legislature has used the words "any order". Same would be the case of refusal to handover possession under subsection (l) of Section 8 of the Act and all the orders passed under said provision of law would no doubt be appealable.

13.An Hon'ble Single Member Bench of

this Court while resolving a similar controversy in the case of Mst. Farah Deeba Ys. Said Muhammad and another (Cr.M No. 03-t![/2019 Abdul Srbooh/' (D.8.) Ho.'bl. Mr. Jurdc. MuhrDErd N[lr Mrhfooz Hor'bl. Mr. Juralc. Wlqrr AiDrd

-l l- (Leave to appeal)) has also reached to similar conclusion, wherein it has been observed;

"Section 3 (1) of the Act makes illegal occupylng of the property ls an olfence and subsections (2) and (3) thereof provldes the punishment for illegal occupatlon of the property. It is the dlscretion of the trial Court, either to acqult or convict the accused or evetr dismiss the complaint, if found non- maintainable, keeping in view the law and evidence on record. The said order of acquittal of the accused, dlsmlssal of the complaint or conviction of the accused would fall within the mlschief of word notder'and are thus appealable in terms of section 8-A of the Act. Similarly the dismissal of the complaint will have the same consequences because the complalnt, os provided in the Act, is not synonymous wtth the complaint as provided ln section 4 (h) of the Code."

14.While adopting the purposive approach, we can also identiS the mischief with ease for suppression ofwhich this Section had been provided. While giving judgment in the case of Mian Sharif Shah vs Nawab Khan and 5 others reported as PLD 2011 Peshawar 86, a fulI Bench of this Court had advised the Provincial Govemment to insert a provision in the Act, which would provide for remedy of an appeal to a person aggrieved ofan order ofhis conviction or acquittal under the Act. Relevant part of observation in this regard is reproduced hereunder for ready reference;

Abdul Srbooh/r (D.8.) Hor'bh Mr. Jurdcc MrlrDDrd Nrdr Mttfoor Ho!'bl. Mr. JtlttLc Whrr A!E.d

6'Now the question is as to what should be the better course to provide a remedy of an appeal to the aggrieved person from the order of conviction or acquittal, passed by the Court of Session under the Illegal Dispossesion Act, 2005. It tg well etrtrerched principle of law that no crimlnal Court of Tribunal shall be invested with absolute authority particularly, in cases where right to liberty and property of a citizen is involved. If linality is attached to the judgment of the Sessions Court then, in cases of patent injustice committed to stryone either in case of conviction or that of acquittal, the only remedy for the aggrieved person would be to file a constitutlonal petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, however, it is an ironclad principle of law that in writ jurisdiction, the Htgh Court is neither supposed nor it is permissible for it to make reappraisal of evidence or determine the controversy of facts and to draw conclusion therefrom like a Court of appeal, hence, such remedy, being of a very restrlcted scope, is not eflicacious ln any manner, thus, conviction recorded or order of acquittal passed causing miscarriage of justice would go unchecked at High Court level. There may be cases where valuable State property ls grobbed but the culprits are acquitted, thus, the public exchequer would sulTer irreparable loss. In such circumstances, the land (MAFIA' and property grabbers, the most influential devious by mauipulating to go scot-free would successfully defeat tho objects and purpose of the very law and its eflicacy would be brought to naught which may lead to dangerous results."

15.Most noticeable in the above reproduced para is that this Court while impressing upon the relevant authorities the need for introducing the amendment had also held that writ jurisdiction of a High Court could not be used for Abdul Srbooh/r (D.B.) Hor'tL Mr. Jurdcc MrhEnrd N.rlr Mrhfooz Hor'bh Mr. Juttlcc Whrr ALEtd

determining a controversy of facts and to draw conclusions there-from like a Court of appeal would be able to do. It was also held that powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 being restricted would not be sufficient and efficacious for determination of various factual controversies that may be arising out of petitions filed against orders passed under various provisions ofthe Act. Such findings ofthe Court had not been binding on the legislature but are only quoted so as to have a glimpse of the background in which Section 8-A had been added to the Act. We entertain no doubt that the provision of appeal had been inserted in order to make the orders passed under the Act appealable before an appellate Court, which may have the powers and competence to give a rethought to the factual issues involved therein. Provisions of the Criminal Procedure Code, 1898 (hereinafter referred to as "Cr. PC") had been made applicable under section 9 of the Act and when the right of appeal had also stood furnished, then we can safely make resort to the provisions of Cr. PC for knowing the powers of an appellate Court. The appellate Court would therefore have all the powers ofan appellate Court Abdul Srboolrr (D.8.) Hon'blc Mr. Juttlcc Muh.tsD.d Nltlr M.hfooz Hor'blc Mr. Jutdc. Wh.r Ahurd

provided under the relevant provisions of Cr. PC.

Purpose of the legislature while inserting Section 8-A in the Act had therefore been clear that it wanted to make orders passed under the Act appealable so as to afford a chance to the aggrieved party, which may be complainant or accused to avail the remedy of appeal, wherein the appellate forum would have all the powers for re-assessing the material available on record as well as re-appreciating the evidence, as the case may be.

Therefore, the literal constnrction supplemented by purposive construction in some respects are leading us to the conclusion that all the orders passed under section 3 of the Act as well as sub-section (l) of Section 8 of the Act have been made appealable before the High Court.

16.The mischief rule is most often employed where a departure from the literal meaning is needed to avoid absurdity, but not so always. Mr. S.M Zafar while seconding the observations expressed in statutory interpretation by F. Bennion 5s edition has observed in his book Understanding Statutes at page 20;

"The mischief rule was a great improvement on the then prevailing

Abdul Srbooh/r (D.8.) llor'bl. Mr, Jutdrc MuhDErd Ndr Mrhloot Hor'bl. Mr, Ju.dcc wlq.r AhD.d

literal rule, it at teast encourrges the Courts to have regard to the contert ln whlch the doubtful wordc rpper.

Langurge cannot be properly understood without some knowledge of the eoltert It ls thercfore obvloudy senslble to pormit and even elcouroge the Court to go beyond the uarrow confines of the disputed phrase. The mischief rule is designed to get the Court to conslder why the Act was passed and then to apply that knowledge in giving the wordg under consideration whatever meaning witl best accord with the social purpoie of the legislotlon."

Recourse is not made here to

purposive construction for the reason that a departure is needed from plain language of tlte statute but for unearthing the intention of legislature and having a holistic view of the situation. Purposive construction is being employed here in addition to literal construction and not as its substitute in entirety.

l7 In light of what has been discussed above, we answer the question to the effect that all orders passed under subsections (2) and (3) of Section 3 of the Act, including the orders of conviction or acquittal ofthe accused or dismissal of complaint for there-being no case of contravention ofprovisions ofSection 3 ofthe Act, would be appealable under section 8-A of the Act. Resultantly, we order all these writ petitions to be converted into appeals filed under section Abdul Srbooh/r (D.B.) Ho!'blc Mr. Juttlc. MutrlEo.d N.dr Mthfooz Ho!'bla Mr. J$d.. wlqrr AhE.d

8-A of the Act, against the impugned orders by relying upon judgment of the Hon'ble Supreme Court of Pakistan in the case of Muhammad Akram vs. DCO Rahim Yar Khan reported as 2017 SCMR 56. Offrce shall accordingly fix all these cases before appropriate Benches for further proceedings.

Announced Dt:03.03.2021

JUDGE

E

*ttoq1"' Ho!'blc Mr' Jutttc' Wlq'r AbDrd