2011 PLP 861 (YLR)

ATTAULLAH KHAN J.

The petitioner Muhammad Ismail Khan has filed this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to declare the order dated 28-10-2009 passed by the learned Sessions Judge Lakki Marwat as illegal ab initio having no effect upon his rights.

2. Briefly stated facts of the case are that Mst. Hajra Bibi and her husband, namely, Ali Muhammad, respondents herein, have applied to the Sessions Judge Lakki for initiating legal proceeding against the petitioner Muhammad Ismail Khan along with Abdul Majeed Khan and restoration of possession of a residential house and other house-hold articles.

3. The learned Sessions Judge served the respondents with notice and Bailiff of the Court was also directed to submit a detailed report about the allegations of the petitioners therein. In response thereto, Muhammad Ismail Khan (petitioner herein) submitted in the shape of Mad No.12 dated 21-10-2009 accompanied by a receipt allegedly executed by Abdul Hameed Khan with regard to the vacation of the disputed house but failed to attend the Court personally, while Abdul Hameed Khan besides submission of written reply also personally attended the Court.

4. The learned Sessions Judge after hearing arguments of learned, counsel for Abdul Hameed Khan and taking into account the materials available on record, accepted the application of Ms. Hajra Bibi and her husband Ali Muhammad and ordered the restoration of possession of the house in question to them and at the same time ordered the registration of a criminal case under section 447, P.P.C. and section 156 of Police Order, 2002 against Muhammad Ismail Khan. The said order is impugned by him through the instant petition.

5. Learned counsel for the petitioner contended that the impugned order is illegal, without facts and inoperative upon the rights of the petitioner, because the findings of the learned Sessions Judge are mixed, i.e. delivery of possession and registration of case against the petitioner.

6. On the other hand, the learned D.A.-G. supported the impugned order. Ali Muhammad respondent No.2 while appearing in person submitted that the impugned order of the Court below is quite legal and in accordance with law. He has also submitted written arguments wherein the facts of the case have been narrated.

7. We have gone through the record carefully and considered the submissions of the parties.

8. Perusal of the impugned order reveals that the learned Sessions Judge has accepted the application, directed restoration of possession of the disputed house to the respondents herein and also directed registration of a criminal case against the petitioner under section 447, P.P.C. and section 156 of the Police Order, 2002.

9. The very application of the respondents is available on file and for the sake of convenience its subject is reproduced as below:-

10. In the body of the application, it has also been prayed that case be registered and possession of the house be delivered.

11. It seems from the careful examination of the application that the same is filed under section 22-A, Cr.P.C. for registration of a case and also under the provisions of Illegal dispossession Act for obtaining possession of the house.

12. Though both the above provisions of law give jurisdiction to the Sessions Judge to make an order, but the hurdle is that the petitioner was required to have filed two separate applications under the each provision of law and both the prayers cannot be claimed in one and the same application.

13. Moreover, in the application over which the impugned order has been passed, the law has not been specified whereunder the petitioners have sought redressal of their grievances. Neither it is an application under section 22-A, Cr.P.C, nor under the Illegal Dispossession Act and the Court below has also failed to fulfil the formalities provided under the each provision of law. No charge has been framed and no inquiry has been con-ducted.

14. Similar is the matter of registration of case. No materials are available on file to show that there is any need for registration of case because, prima facie, no offence has been committed or established to have been committed by the petitioner.

15. In view of the above discussion, we are of the view that the application, which is the subject' matter of the impugned order, is neither filed under the provisions of Illegal Dispossession Act nor under section 22-A, Cr.P.C.

16. Consequently, we accept this writ petition, set aside the impugned order and declare it as illegal. The respondents are, however, at liberty to file fresh application under the proper sections of law to the competent Court for the redressal of their grievances. A.R.K./407/P Petition accepted.