KARACHI: The conviction rate remained zero per cent in the special anti-encroachment court (AEC) in Karachi — the lone special court functioning in the province — that acquitted all the nominated suspects in the last eight months, it emerged on Sunday.

Three special anti-encroachment courts were set up in the province: one each at Karachi, Hyderabad and Sukkur. However, judicial and prosecution sources told Dawn that only one court was functioning at Karachi as the other two appeared to be non-functional as no cases were being filed by the relevant authorities.

The collective data obtained by Dawn suggests that currently there are 24 cases pending trial before the anti-encroachment court in Karachi. It further shows that only two new cases pertaining to alleged illegal encroachment or land grabbing were instituted with the AEC in Karachi from Jan 1 to Aug 31.

The court decided only five cases during this period, acquitting all the persons nominated in them, according to official statistics.

“The conviction rate stands at zero per cent in the three anti-encroachment courts,” a judicial and prosecution source said, citing official statistics. “Therefore, the acquittal rate stands at 100 per cent.”

Statistics show 24 cases are pending trial before court; all five suspects acquitted in as many decided cases

The provincial assembly had passed the Sindh Public Property (Removal of Encroachment) Act in September 2010 with the aim to provide measures for the removal of encroachment from public property and to retrieve possession. The provincial law department had notified establishment of three special anti-encroachment courts/tribunals in the exercise of the Section 12 of the Act, with the approval of the competent authority (Sindh chief minister) on Aug 6, 2010.

The same year an anti-encroachment court, headed by a district and sessions judge, was established under Section 25 of the Act for the purpose of providing speedy trial of offences committed under this Act.

Initially, one court was set up at Karachi at City Courts and it was later relocated to the Civic Centre at Hassan Square. Similarly, one each court was also set up in Hyderabad and Mirpurkhas, appointing a retired district and sessions’ judge as its presiding officer, on a contractual basis for two years.

To prevent encroachment on public property, retrieve land possession from encroachers and trespassers, and to enforce the provisions of the Act, the Sindh government also established a special force, Anti-Encroachment Force (AEF), headed by a senior superintendent of police under Section 17 of the Act.

The legislation was made after rising complaints against encroachment upon public property, including amenity plots, and their conversion into private residential and commercial estate.

Encroachment of parks, playgrounds, footpaths, drainage, roads, government buildings, illegal katchi abadis and other public spaces had become one of the major problems in the metropolis.

Under the Section 8(a) of the Act: “Any person responsible for encroachment may be punished with imprisonment of either description for a term which may extend to 10 years but not less than one year and with fine of rupees equivalent to the market value of the property encroached upon, or with both.”

The official statistics, however, suggested that the conviction rate in the anti-encroachment courts remained too low since establishment.

In the current year, the AEC Karachi has decided five cases till August 31 wherein all the nominated suspects have been acquitted. Around two new cases were instituted and currently 24 cases are pending trial before the court, the statistics show.

Record of conviction in previous years

In 2017, the same court decided 19 cases, acquitting all the suspects in 18 cases and convicted those nominated in only one. A total of 15 new cases were filed and 26 were still pending trial by the end of the year.

Similarly, in 2016, the court had decided 20 cases, acquitting all suspects nominated in 18 cases and convicted those in only two cases. Around seven new cases were filed and in total 31 cases were pending trial by the end of year.

In 2015, the AEC Karachi decided only two cases, acquitting all the suspects. Around six new cases were instituted and in total 41 cases were pending trial by the end of the year.

In 2014, the court decided 12 cases, acquitting all the suspects in 10 cases and convicted those nominated in only two. Around 14 new were filed while 40 were pending trial by the end of the year.

AEC Hyderabad decided three cases in 2017 and acquitted all the nominated suspects while it decided only one case in 2014 and convicted the nominated accused persons.

There was no case filed with the AEC Hyderabad this year. Similarly, no case was filed with the AEC Sukkur since 2017, the data showed.

Low conviction rate

Responding to Dawn, the official sources in the prosecution department blamed the lack of proper training, poor investigation, weak prosecution and ill-coordination among the relevant government departments for the low rate of the cases and high rate of acquittal in the anti-encroachment courts.

“The government has established the anti-encroachment courts to exclusively deal with land matters, but it has failed to properly train the police and prosecution in dealing with such trials,” said the prosecution department officials, requesting anonymity.

“The trial of grabbing or encroaching land involves both criminal and civil laws while the investigating officers posted at the special

anti-encroachment force and the prosecutors deputed at the special anti-encroachment courts mostly specialise in criminal trials,” the sources argued.

“Rarely do the IOs bring lands record, which is a crucial piece of evidence to build the cases and get land grabbers or encroachers punished,” they added.

For poor prosecution, the prosecution officials blamed the relevant land agencies or departments in the local and provincial government for not cooperating with the investigations and not providing the original official lands’ record, due to which law breakers go scot-free.

Surprisingly, the number of the cases put up for trial by the AEF too was low for example in a mega city like Karachi, where the Supreme Court ordered retrieval of the land of hundreds of amenity spaces alone.

“The cases in respect of land grabbing or encroachment are filed with the AEF only on behalf of the state and that too by either an assistant commissioner or the Mukhtiarkar of the concerned district, as provided in the Section 8 of the Act,” the prosecution sources said.

They said several cases were ‘resolved’ at the level of the assistant commissioner or the Mukhtiarkar’s offices, and subsequently no FIR was registered.

People file cases against encroachments or grabbing of their lands with the separately established Anti-Encroachment Tribunal, located at Civic Centre.

However, sources said most of the cases were being registered by land department authorities only to save their own skin since the National Accountability Bureau (NAB) had widened the scope of its crackdown on corruption and had filed references against the officers in the local and provincial land departments.

Dysfunctional courts

Ironically, official statistics showed that the anti-encroachment court set-up in Hyderabad and Sukkur were apparently lying non-functional; the judges and judicial staff was present, but the government was not filing any case related to land grabbing and encroachment.

When, contacted by Dawn, Prosecutor General Sindh Ayaz Tunio blamed the weak investigation for the high rate of acquittal, arguing that the prosecutors had to plead the cases on the basis of the evidence, which was a responsibility of the AEF to dig out and produce in the court.

Commenting on the low number of cases being put up for trial in the anti-encroachment courts, Mr Tunio argued that earlier an FIR was registered first and then notices were issued to the alleged violators to either vacate the encroached/grabbed land or face a trial, as provided under the Section 3(1) of the Act, offering them two days to vacate the premise or face action.

According to him, the Sindh High Court in 2012 passed a judgment, wherein it ordered that first the concerned authority should issue a notice to the alleged violators offering them two days to vacate illegally encroached or grabbed land and in case of failure register an FIR against them. “That’s the reason now the notice is served before registering an FIR due to which the accused persons manage to avoid any action against them,” reasoned Mr Tunio.

However, a perusal of the SHC’s judgment suggested that the AEF without issuing any notice had lodged two FIRs against a senior researcher, who had duly purchased a piece of land in Gadap Town, Karachi, for the purpose of botanical gardening.

Asked whether an appeal was filed against such judgment, the top provincial prosecutor said the ‘relevant authorities’ did not contact the PG Sindh Office over the matter.

Past performance

The previous data also showed that the AEF had registered around 185 cases from August 2010 till November 2017 and had sent 110 to the AECs for initiating proper trial of the suspects.

However, less than half (50) were decided with land grabbers being convicted in only five cases. Merely 12 cases have been registered against land encroachment in Karachi.

But the force, since its establishment, has registered 185 cases and filed charge-sheet in just 110 cases.

Strangely enough, 74 cases were not sent for trial at all. Of them, the AEF remained clueless about accused persons in 50 cases and held A-class report.

Seventeen cases were cancelled under C-class, six cases were quashed while one case was found bogus and disposed of under B-class.

Of the 110 cases in which suspected land grabbers were charge-sheeted, the court acquitted accused persons in 45 cases and convicted the land grabbers in only five cases.

As many as 32 cases have been kept dormant since the accused had absconded while 28 other cases are pending trial before the court.

The AEF had registered 37 cases in 2010, 56 in 2011, 45 in 2012, three in 2013, 15 in 2014, five the following year, 14 in 2016 and around 10 in 2017.

Of the 37 cases registered in the year 2010, 20 cases were sent for trial.

The following year charge-sheet was filed in 22 of the 56 cases. Suspects in 28 of the 45 cases were charge-sheeted in 2012. All the cases registered the next year and those in 2015 were sent for trial. However, charge-sheet in 13 of the 15 cases registered in 2014 were filed in court.

Five of the six FIRs registered in 2016 were sent to court for trial and all the 10 cases registered in 2017 were sent to the court for trial.

Published in Dawn, September 17th, 2018