2015 MLD 595 KARACHI-HIGH-COURT-SINDH

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Dr. ZAFAR SAIED SAIFY VS FEDERATION OF PAKISTAN through Secretary, Ministry of Science and Technology Constitutional petition--TERM , Sindh Public Property (Removal of Encroachment) Act 2010--3 , Sindh Public Property (Removal of Encroachment) Act 2010--4 , Sindh Public Property (Removal of Encroachment) Act 2010--8 , Ss. 3(1) 4 & 8(1)---Constitution of Pakistan, Art.199---Constitutional petition---Quashment of FIR---Encroachment on public property---Registration of FIRs for illegally occupying the Government land---Procedure and power---Issuance of notice for removal of encroachment and filing of review petition under Ss. 3 and 4 of the Sindh Public Property (Removal of Encroachment) Act, 2010---Requirement and scope---Petitioners purchased the government land for cultivation of plants to be used for extracting anti-malaria agent---Prosecution after investigating both the criminal cases recommended the disposal in 'A' Class---Authorities subsequently admitted that the petitioners were not encroachers---Contention of the petitioners was that before registration of criminal cases, the requirements of S. 8(1) of the Sindh Public Property (Removal of Encroachment) Act, 2010 had not been fulfilled---Validity---FIR under S. 8(1) of the Sindh Public Property (Removal of Encroachment) Act, 2010 could only be registered against those encroachers who despite issuance of an order directing removal of encroachment as contemplated in S. 3(1) of the Sindh Public Property (Removal of Encroachment) Act, 2010 and without preferring any review or after dismissal of their review petition failed to remove the encroachment---Legislature in order to prevent the misuse of penal provisions had required the enforcer of law to first issue an eviction order/notice and thereafter had provided a review against that order with an opportunity of being heard in order to ensure that no unnecessary harassment was caused to the genuine owners/occupants of the government land---Respondents (officials) with mala fide intention and ulterior motive had lodged FIRs under the provisions of S. 8(1) of the Sindh Public Property (Removal of Encroachment) Act, 2010 by misusing their authority---High Court while quashing the FIRs directed the Authorities to initiate departmental proceedings against the respondents---Constitutional petition was allowed in circumstances.