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P L D 2006 KARACHI 221

CAPTAIN S.M. ASLAM
V/S
THE STATE AND 2 OTHERS

Per Sajjad Ali Shah, J-

Constitution of Pakistan (1973) Art. 12-
R/w Illegal Dispossession Act (XI of 2005)
Ss. 3 & 5-

However by no stretch of imagination the provision of section 200 of Code of Criminal Procedure can be read in a manner to bound the Court to record the evidence despite the fact that accusations made in the complaint do not constitute an offence or the act complained of is not an offence at the time of occurrence.  The learned counsel further failed to appreciate that section 5 of the “said Act” lays down a procedure to be adopted by the Court of Session upon a complaint and provides that upon a complaint the Court may direct the officer-in-charge of a Police Station to investigate and complete the investigation and forward the same within 15 days to the Court.  The word ‘may’ used in section 5 of the said Act is quite significant and leave a room for the court to satisfy itself as to the competence and maintainability of the complaint.

Consequently, an act or omission which was not punishable offence at the time when it was committed cannot by retrospective application of law be made punishable.  The argument that the said Act is retrospective as it does not provide for prospective application even otherwise is fallactious and not only against the settled principles of law but against the provisions of Article 12 of the Constitution of the Islamic Republic of Pakistan, 1973, which specifically protect against retrospective punishments and provides that no law shall authorize the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission; or for an offence by a penalty greater than or of a kind different from the penalty prescribed by law for that offence at the time the offence was committed, consequently, the provision of “said Act” cannot be extended to an act of illegal dispossession as envisaged in subsection (1) of section 3 if taken place prior to the promulgation of “Said Act”.

The contention of the learned counsel that since the act of illegal dispossession is a continuing offence therefore, it can be taken cognizance of under the provision of “said Act” despite such dispossession has taken place prior to the promulgation of the “said Act” is also without substance as perusal of subsection (1) of section 3 reveals that it is the “Act of entrance” upon the property of someone with the intention to dispossession, grab, control or occupy such property from its owner or occupier is made punishable under subsection (2) of section 3 of the “said Act” and not the act of retaining illegal possession of any property, consequently, in order to attract the application of “Said Act” the act of entering upon the property of someone with the intention to dispossess, grab, control or occupy such property from its owner or occupier must have taken place on/or after 7th July, 2005, the day when the said Act was published in the official Gazette.

In the circumstances, no case for intereference with the impugned order dated 2-11-2005 is made out.  This Revision consequently fails and is hereby dismissed. [pp. 224, 225] B,C,D & E

Syed Ansar Hussain for Applicant.

Muhammad Sabir Hyder, A.A.G for the state

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