2010 PLP 1644 (MLD)

SHAHID HAMEED DAR, J.--Through this petition under sections 435/439 Cr.P.C. the petitioner has challenged the validity of order dated 13-4-2009 passed by learned Additional Sessions Judge, Khushab, whereby, an application under section 265-K, Cr.P.C., moved by the petitioners has been dismissed.

2. Briefly, the facts leading to the filing of the instant criminal revision are that the. petitioner purchased a 10 Marlas plot situated in Ulfat Colony, Joharabad Town, in year, 1989 from Moulana Rasheed Ahmad, with following descriptions:-- North Road, South Plot of Abdul Sattar. East Plot of vendor. West Land of Khuda Bakhsh. The possession of the plot was delivered to the petitioner who constructed its boundary wall with a gate installed in it. The petitioner had been using this plot as a cattle-shed/Haveli for 20 years.

3. Khuda Bakhsh, respondent No.1, claiming to be an owner of the said plot vide sale deed dated 24-1-2008, filed a private complaint under section 3 of Illegal Dispossession Act, 2005 against the petitioners, his brother and father with the allegation that they had forcibly taken the possession of the disputed plot and had started raising constructions thereon and that they had been extending him threats of dire consequences. It was prayed by the complainant-respondent No.1 that the plot grabbers be punished and the possession of the occupied plot be restored in their favour.

4. The learned Additional Sessions Judge called for a report from the police and concerned Tehsildar who submitted their reports in negation to the version of the complainant (respondent No.1) and in favour of the petitioners. The learned trial Court after preliminary proceedings, summoned the petitioners to face the trial and issued their bailable warrants of arrest. The petitioners moved an application under section 265-K, Cr.P.C. seeking acquittal of the charge but it was dismissed by the learned trial Court vide order dated 13-4-2009, hence, instant petition.

5. Learned counsel for the petitioners contends that the judgment/ decree dated 13-2-1989 and the Arbitration Award dated 2-1-1989 indicated that the petitioners had purchased the plot in question and the Arbitration Award had been made the rule of the Court; the petitioners are the owners of the disputed property since 1989 and the judicial record is un-rebuttable proof of it; that on his own showing, the respondent No.1 admits the possession of the petitioners on the disputed plot since long and his alleged sale deed has been fabricated by him twenty (20) years later than the judgment/decree of the petitioners which is still intact, having never been challenged by anyone including the respondent No.1; that a delayed sale deed of the respondent No.1, cannot outweigh the decree of the petitioners; the Illegal Dispossession Act, 2005 is not applicable against the owners in possession of their own property; the learned trial Court has failed to appreciate the judicial record in favour of the petitioners and dismissed the application under section 265-K, Cr.P.C. without any cogent and plausible reason; the impugned order has been passed mechanically, without application of judicial mind; the impugned order is devoid of any rational argument which may not be held sustainable. Relies upon PLD 2007 Lahore 231.

6. On the other hand learned counsel for the respondent No.1 opposes the contentions of the learned counsel for the petitioners with the submission that the impugned order has been passed in accordance with law and it does not suffer from non-reading or misreading of the record; it is a speaking order which has been passed judiciously and it does not call for interference. Relies upon PLD 2007 SC 423, PLD 2008 Lahore 392, PLD 2008 Lahore 358 and 2010 PCr.LJ 268.

7. Arguments heard. Record perused.

8. The contention of the petitioner is that he is owner in possession of a plot, the description of which has been mentioned above. He also contends that he is the owner of the said plot on the basis of judgment and decree dated 13-2-1989 whereby, an Arbitration Award qua the plot in dispute has been declared as the Rule of the Court and that, said judgment/decree is still intact as it has never been challenged so far by anyone including Khudha Bakhsh, respondent No.

1. He claims to have constructed a boundary wall on it and that he has been using this plot as a cattle-shed since, 1989. The complaint filed by respondent No.1 under section 3 of the Illegal Dispossession Act, 2005 discloses that that he had purchased a plot measuring 10 Marlas from one Shaukat Ali on 24-1-2008 for consideration of Rs.4,20,000 with following descriptions:- North Street, thoroughfare South House of Sunderianwala. East Plot Haji Ahmad Jatt. West Vacant plot. The learned trial Court called for the reports from Police Station, Joharabad as well as from concerned Revenue Officer. I have gone through both the reports, which are vague and sketchy. In the police report, it has not been written 'anywhere that the description of the plot mentioned in the sale deed, in favour of respondent No.1 overlapped the description of the plot owned by the petitioners yet, it has been certified that the petitioner Farhat Abbas Shah owned and possessed a plot of 10 Marlas with a few constructions on it, for last 20 years but not a single word has been mentioned either by the police or by the Revenue Official in their reports that the plot, one mentioned by Khuda Bakhsh, respondent No.1 with specific description, existed in Ulfat Colony, Joharabad, Town or not, or whether that Khuda Bakhsh respondent No.1 had been pointing at the same plot, as owned and possessed by the petitioner No.1, to be his plot which according to his complaint, had been forcibly occupied by the accused (petitioners). This controversy may be resolved through demarcation of the plot(s), keeping in view the description of the said plots, but there is a practical difficulty, that, as per Revenue Record, neither the petitioner No.1, nor Khudha Bakhsh, respondent No.1 are the owners of any plot at above said Ulfat Colony. The petitioner No.1 and respondent No.1 has not got the documents pertaining to the claimed plots, entered into the Revenue Record of the area, as is evident from the report, submitted by the Revenue Official.

9. In the aforesaid situation, until the controversy regarding the description and location of the plot in question is resolved, the contention of the petitioners seeking acquittal, prior to the recording of the evidence of the parties may not be entertained. The answer to this riddle is concealed in the evidence of the parties which has to be recorded by the learned trial Court before it reaches any conclusion qua the veracity of the allegations, levelled by Khuda Bakhsh, respondent No.

1. The impugned order therefore, does not call for any interference as it cannot be termed as arbitrary, capricious or a foolish order.

10. The upshot of the above discussion is that the instant revision petition is dismissed, being misconceived. A.R.K./F-24/L Petition dismissed.