P L D 2016 Supreme Court 769

Present: Anwar Zaheer Jamali, C.J., Amir Hani Muslim, Sh. Azmat Saeed, Manzoor Ahmad
Malik and Faisal Arab, JJ

Mst. GULSHAN BIBI and others---Petitioners

Versus

MUHAMMAD SADIQ and others---Respondents

Civil Petition No. 41 of 2008 and Civil Appeals Nos.2054 of 2007 and 1208 of 2015.

(On appeal against the judgments dated 15-1-2008, 19-1-2007 and 17-6-2014 passed by the Lahore
High Court, Lahore and Multan Benches in Writ Petitions Nos. 9357/2007, 11952/2006 and
11963/2010).

(a) Legislation---

----Special law enacted to curb a crime---Scope and applicability---Category of persons who could
be prosecuted---Legislature while enacting a special law for awarding punishment for a crime, in
its wisdom, may or may not describe any particular category of persons who could be prosecuted-
--Where a special law after making a particular act an offence also described the category of
persons who could be prosecuted then unless such person fell within the described category, he
could not be prosecuted---Where the special law only described the offence or a set of offences
and sought to punish any person and every person who was found to have committed the described
offence then terms like `anyone', 'any person' `whoever' and 'whosoever' were used for the
offenders in order to include all offenders without any distinction---In such a case, the offender
may belong to any class of offenders, he as an accused could be prosecuted under such law.

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

----S. 3---Illegal possession of property---Complaint under Illegal Dispossession Act, 2005---Pre-

condition---Nature of accused---Any person who illegally dispossessed, grabbed, controlled or
occupied property of a lawful owner or occupier shall be liable for prosecution under the provisions
of the Illegal Dispossession Act, 2005---For prosecuting an accused under the said Act, the
complainant did not have to first establish that the accused possessed the credentials or antecedents
of being a professional land grabber or member of a Qabza Group---All that the Court had to see
was whether the accused nominated in the complaint had entered into or upon the property in
dispute in order to dispossess, grab, control, or occupy it without any lawful authority---
[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].

Question in the present case was whether anyone who committed the offence described in
section 3 of the Illegal Dispossession Act, 2005 could be prosecuted or only those persons could
be prosecuted who held the credentials and antecedents of a 'land grabber' or 'Qabza Mafia'.

Illegal Dispossession Act, 2005 had defined the offence but had not categorized any class
of offenders who only could be prosecuted for committing the defined offence.

Reading of section 3(1) the Illegal Dispossession Act, 2005 shows that terms like
dispossess, grab, control or occupy had been used which clearly meant that illegal dispossession
in all forms had been made an offence and by the use of the terms 'no one' and 'whoever' in sections
3(1) & (2) , anyone and everyone who committed such an offence was made liable for punishment.
The very use of the terms like 'no one' and 'whoever' were clearly intended to convey the widest
possible meaning for the offenders. Thus without any distinction any person who illegally
dispossessed, grabbed, controlled or occupied property of a lawful owner or occupier shall be
liable for prosecution under the provisions of the Illegal Dispossession Act, 2005.
 Section 3(1) of the Illegal Dispossession Act, 2005, by using the terms 'anyone' and
'whoever' for the offenders clearly warned all persons from committing the offence described
therein and when found guilty by the court were to be punished without attaching any condition
whatsoever as to the maintainability of the complaint. So all that the Court had to see was 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 was required
to be established by the complainant as no precondition had been attached under any provision of
the said Act which conveyed the command of the legislature that only such accused would be
prosecuted who held the credentials and antecedents of 'land grabbers' or Qabza Group'.

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 as not good law

From the mere use of the term 'property grabbers' in the Preamble to the Illegal
Dispossession Act, 2005 one could not 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' could be construed to refer to anyone who had 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 deflect the court to go into issues which were not subject matter
of the complaint that was before it.

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 as not good law

(c) Interpretation of statutes ---

----Preamble, reliance upon---Scope---Where the language of the substantive provision of an

enactment was clear and not open to any doubt then the Preamble could not be used to curtail or
enlarge its scope --- Where the enactment was clear and unambiguous, the Preamble could not 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 was not clear, the Preamble may be resorted to
in order to explain it---So the Preamble was to be resorted only to explain and give meaning to any
provision of the enactment where its language was open to doubt or was ambiguous or susceptible
to more than one meaning.

(d) Interpretation of statutes---

----Legislative history, reliance upon---Scope---Reference to Legislative history was permissible

only as an aid to construction of legislation which was ambiguous or obscure or the literal meaning
of which led to an absurdity i.e. from the text of a statute, the court was unable to decipher the real
intent of the legislature---Where the text was clear and there existed no ambiguity, resort to the
legislative history may actually be counter-productive because such history contained sporadic
accounts and arguments made by the Parliamentarians and the final outcome of debates and
arguments made in the Parliament could be much different---Real intention of the Parliament was
to be first and foremost ascertained from the provisions of the enactment itself and frequent resort
to the legislative history was not warranted.

Pepper v. Hart [1992] 3 WLR 1032 ref.

Muhammad Aslam Zar, Advocate Supreme Court and Sardar Abdul Razzaq Khan,
Advocate Supreme Court for Petitioners (in Civil Petition No.41 of 2008).
 Nemo for Respondents (in Civil Petition No.41 of 2008).

Sajid Ilyas Bhatti, D.A.G. for Appellants (in Civil Appeal No.2054 of 2007).

Ex parte for Respondents Nos. 1-6, 9-10 (in Civil Appeal No.2054 of 2007).

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mehmood A. Sheikh,
Advocate-on-Record for Appellant (in Civil Appeal No.1208 of 2015.).

Nemo for Respondents (in Civil Appeal No.1208 of 2015.).

Sajid Ilyas Bhatti, D.A.G. for Federation.

Mudassar Khalid Abbasi, A.A.G. for Government of Punjab.

Sarwar Khan, Addl. A.G. and Abdul Jabbar Qureshi, A.A.G. for Government of Sindh.

Date of hearing: 15th June, 2016.

JUDGMENT

FAISAL ARAB, J.---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 v. Muhammad Yousaf
(2009 SCMR 1066), Mumtaz Hussain v. Dr. Nasir Khan (2010 SCMR 1254) and Shahabuddin v.
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 v. Additional Sessions Judge (PLD 2010 SC 661) and followed in the case of Habibullah
v. 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 complaint. 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.

4. The legislature while enacting a special law for awarding punishment for a crime, in its
wisdom, may or may not describe any particular category of persons who could be prosecuted.
Where a special law after making a particular act an offence also describes the category of persons
who could only be prosecuted then unless such person falls within the described category, he
cannot be prosecuted. Where the special law only describes the offence or a set of offences and
seeks to punish any person and every person who is found to have committed the described offence
then the terms like 'anyone', 'any person' 'whoever' and 'whosoever' are used for the offenders in
order to include all offenders without any distinction. In such a case, the offender may belong to
any class of offenders, he as an accused can be prosecuted under such law. It can be seen that the
Illegal Dispossession Act, 2005 has defined the offence but has not categorized any class of
offenders who only could be prosecuted for committing the defined offence. This is evident from
the provisions of subsections (1) and (2) of Section 3 of the Illegal Dispossession Act, 2005 which
read as follows:

Section 3 (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.

Section 3(2): Whoever contravenes the provisions of the sub-section (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)

5. A bare reading of subsections (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
in the complaint filed under the Illegal Dispossession Act, 2005 the Legislature would intend 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 complaint, 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.

9. In view of the above conclusion, we hold that the first set of cases 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) is good law whereas the finding arrived at in
the second set of cases i.e. in the case of Bashir Ahmad v. Additional Sessions Judge (PLD 2010
SC 661) and followed in the case of Habibullah v. Abdul Manan (2012 SCMR 1533) which restrict
the scope and applicability of the Illegal Dispossession Act, 2005 is not a good law. Resultantly,
Civil Petition No. 41 of 2008 is converted into appeal and allowed. Likewise, Civil Appeals Nos.
2054/2007 and 1208/2015 are also allowed. The impugned judgments in all three connected cases
are set aside and the cases are remanded back to the High Court for their decision afresh on merits
in accordance with law.

MWA/G-12/S Cases remanded.