P L D 2022 Lahore 559 (PLP)

ALI BAQAR NAJAFI, J.

This Criminal Revision under Section 435/439 read with Section 561-A, Cr.P.C. is directed against order dated 30.08.2021 passed by the learned Addl. Sessions Judge, Faisalabad whereby order dated 13.07.2021 passed by respondent No.2/Deputy Commissioner, Faisalabad was set aside and the case was remanded to him while observing that procedure under Chapter XX of Cr.P.C. as ordained in Section 5 of the Protection of Parents Ordinance, 2021 be followed within 7 days.

2. Brief facts giving rise to the filing of this Criminal Revision are that petitioner is the son of respondent No.1 and the later filed an application under Protection of Parents Ordinance, 2021 (hereinafter to be referred as Ordinance) against the petitioner before the Deputy Commissioner, Faisalabad/respondent No.1 seeking registration of case against the petitioner on the grounds that father of respondent No.1 namely, Haji Muhammad Yousaf, died on 26.02.2021 who used to live in House No. 40-A Peoples Colony No.1, Faisalabad along with respondent No.1 as well as the petitioner but after his Rasm-e-Chehlum, the petitioner forcibly stopped his entry and established his illegal possession. A legal notice was sent on 24.05.2021 but of no avail, therefore, an application for registration of FIR was filed before respondent No.2/Deputy Commissioner, Faisalabad on 29.06.2021. The petitioner filed the reply and categorically stated that his grandfather, the father of respondent No.1 namely, Haji Muhammad Yousaf, was a big textile owner who had left the property of billions of rupees and that respondent No.1 used to live separately in House No. 22, Raza Town, Faisalabad measuring 13 Kanals for the last 23 years and not with the petitioner. It was also asserted that civil suit titled "Mian Muhammad Ikram v. Ali Ikram" for possession and permanent injunction filed by respondent No.1 is pending since 28.04.2021 before the civil court and in the suit for declaration filed by the petitioner titled "Ali Ikram v. Mian Muhammad Ikram etc." against respondent No.1, a statement was recorded on 23.06.2021 to the extent that respondent No.1 had shown no intention to dispossess the petitioner otherwise than in due course of law. It was also stated by the petitioner that after attending the funeral of Haji Muhammad Yousaf, he did not attend any other ceremonial function. It was categorically stated that petitioner is owner in possession of the property in question. Vide order dated 13.07.2021, respondent No.2/Deputy Commissioner, Faisalabad had categorically mentioned that in view of pendency of civil suits between the parties, respondent No.1 was directed to seek remedy from the concerned court of law, notwithstanding the gift deed No. 6159 dated 30.05.2009 registered in the office of Sub-Registrar Urban-1, Faisalabad in favour of respondent No.1. However, the learned appellate court had allowed the appeal and remanded the case on the ground that the impugned order was not sustainable since it was not passed after following the procedure prescribed under Chapter XX of the Code of Criminal Procedure, 1898 and therefore, a direction was issued to respondent No.2/Deputy Commissioner, Faisalabad to follow the said procedure, hence this writ petition.

3. Arguments heard. File perused.

4. In order to understand the true and correct import of the Protection of Parents Ordinance, 2021, its objective may be perused which are reproduced as follows:- "WHEREAS it is expedient to provide for the protection of parents from being expelled or evicted from houses, to provide for offences and punishments in this regard and for matters ancillary thereto;" Besides, Under Section 3 the eviction of parents by child from a house, owned or rented by said child, or in its possession by any other means, has been described as an offence, which may attract rigorous imprisonment for a term up to one year or with fine or with both. Under Section 4 a parent may evict a child, his spouse or offspring, from a house owned or rented by such parent. However, if a child, his spouse or offspring, had failed to vacate the house after seven days of service of written notice of eviction by the parent, he may be punished with simple imprisonment for a term which may extent to thirty days or with fine of Rs. 50,000/-. Under subsection (2) to Section 4, if a child had failed to vacate the house a written complaint can always be filed before the Deputy Commissioner by such parent and upon receipt of such complaint, the Deputy Commissioner after his satisfaction and hearing the parties to the effect that ownership vests with parent shall pass an order of eviction of the house by a child, irrespective of the defence put up by the child including defence that he had constructed the house or purchased through funds of the child. This order passed under subsection (5) as well as under subsection (2) of Section 4 of the Ordinance, is appealable under Section 7 of the Ordinance. However, the order passed under sub-section (5) does not need any recording of evidence as envisaged under Chapter XX of the Code of Criminal Procedure, 1898 but an order under subsection (2) which is a penal provision, the said procedure relatable to trial under Chapter XX of Code of Criminal Procedure, 1898 will be attracted. Under section 6 the trial is to be conducted of a person who has been arrested or appeared or is brought before the Magistrate.

5. Notably, under subsection (2) to Section 4 a complaint can be filed by parent before the Deputy Commissioner. In the said ordinance, neither the word "complaint" has been defined nor provisions of Sections 200 to 240 under Chapters XVI to XIX were made applicable, meaning thereby that the procedure of complaint will not be followed.

6. In the present case, the order passed by the Deputy Commissioner was under subsection (4) to Section 4, therefore, in my humble view it was an order on the civil side, therefore, Chapter XX of the Code of Criminal Procedure, 1898 was not attracted.

7. As far as the order of the Deputy Commissioner is concerned, it is noted that he has failed to exercise his jurisdiction on the pretext that respondent No.1 should have his title declared from the civil court where the civil suits were pending. This appears to be a misinterpretation of subsection (4) of Section 4 wherein the word "irrespective of any defence put up by the child" was mentioned with further word "including the defences about the construction or purchase of house the property". This word, in my humble view, excludes the pendency of civil suit on the said subject before the civil court. The Protection of Parents Ordinance, 2021 is a special law which has to be given special status, therefore, the jurisdiction of the Deputy Commissioner is well intact.

8. For the foregoing reasons, this Criminal Revision is allowed, order dated 30.08.2021 passed by the learned Addl. Sessions Judge, Faisalabad is set aside and the order dated 13.07.2021 passed by the Deputy Commissioner, Faisalabad to the extent of referring the matter to civil court is also set aside and he is directed to exercise his jurisdiction on the basis of Ordinance and the observations made hereinabove. SA/A-1/L Case remanded.