2009 PLP 1162 (MLD)

ALI SAIN DINO METLO, J.

In the month of June, 2006, respondent No.3, Bakhsho Khan Jaffery, filed a complaint, under the Illegal Dispossession Act, 2005, before the Sessions Judge, Kashmore at Kandhkot, alleging that about five months back the petitioners and six others had illegally occupied agricultural land, bearing survey No.1,82 and others, total measuring, 130-27 acres, situated in deh Saifal, Taluka Tangwani, belonging to him and five others.

2. The Sessions Judge directed the officer-in-charge of the Police Station to investigate the matter, who informed him that the petitioners were in possession of the land under some agreements to sell executed by the co-owners.

3. However, the learned Sessions Judge, by his order, dated 24-2-2007, disposed of the complaint by directing the petitioners and others to hand over possession of the land to the respondent No.3 and other co-owners, without recording evidence and conducting trial.

4. On the face of it, the procedure adopted by the learned Sessions Judge for the disposal of the complaint is not warranted by law. A complaint is to be either dismissed, under section 203 of the Code of Criminal Procedure, 1898 (Cr.P.C.) if there be no sufficient ground for proceeding, or brought on record, if there be sufficient ground for proceeding and appropriate process is to be issued under section 204 ibid to secure presence of the accused for the purpose of conducting trial. The trial is to end either in conviction or acquittal of the accused.

5. In the present case, there is no order either of dismissal of the complaint or bringing it on record, or conviction or acquittal of the accused. The method of disposing of complaint simply by ordering restoration of possession is novel unsustainable in law.

6. Restoration of possession can be ordered either under section 7 of the Illegal Dispossession Act, 2005, as an interim measure during trial, or under section 8 ibid at the time of pronouncing punishment on the conclusion of trial. An order passed under section 7 ibid shall be subject to the final order, which may be passed on the conclusion of trial.

7. An order under section 7 ibid can be passed only when a prima facie case of illegal dispossession is made out against the accused and the Court has decided to proceed with the trial. It cannot be passed without bringing the complaint on record. In the, present case, the complaint was not brought on record and it was not given any number.

8. Regarding maintainability of the petition, learned counsel for the petitioner contended that the Illegal Dispossession Act, 2005, did not contain any provision for filing appeal or revision and, therefore, in absence of any other remedy, resort had to be made to the filing of the constitutional petition. The contention is without any force. The Code of Criminal Procedure, 1898, containing provisions of appeal and revision, deals with offences not only under the Pakistan Penal Code, 1860, but also under other laws, of course, subject to any contrary provision contained in those laws.

9. Section 5 of the Code of Criminal Procedure provides that all offences whether under the Pakistan Penal Code or under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code, subject to any contrary provision contained in those laws.

10. Section 9 of the illegal Dispossession Act, 2005, provides that unless otherwise provided in the Act, provisions of the Code of Criminal Procedure shall apply to the proceedings under the Act.

11. The Illegal Dispossession Act, 2005, does not contain any provision barring right of appeal or power of revision to the High Court.

12. Right of appeal is a very important right. In more than one case the Supreme Court has held that statutes denying right of appeal to the aggrieved persons were repugnant to the injunctions of Islam. For this, reference may be made to the cases of Federation of Pakistan v. Public at large (PLD 1988 SC 202) and Pakistan through Secretary Ministry of Defence v. The General Public (PLD 1989 SC 6).

13. The offence under section 3 of the Illegal Dispossession Act is punishable with imprisonment which may extend to 10 years. In absence of any express provision in the statute barring right of appeal, it cannot be assumed that the legislature intended to deny right of appeal to the convicts awarded such a high punishment. Repugnancy to the Constitution or the injunctions of Islam cannot be assumed in respect of a legislation.

14. In the daily practice of the Courts, appeals of convicts of offences under other laws, for example under the Pakistan Arms Ordinance, 1965, are filed and decided under the Code of Criminal Procedure despite absence of any provision of appeal in those laws.

15. The supervisory or revisionary power of the High Court over the performance of subordinate Courts is very necessary for effective and clean administration of justice. It is recognized by both the Codes of Civil and Criminal Procedures as well as by the Constitution (Article 203). Denial of such power to the High Court cannot also be assumed.

16. The Court of Session is subordinate to the High Court, Orders passed by a Court of Session, irrespective whether they are passed in proceedings relating to the offences under the Penal Code or under other laws, including the Illegal Dispossession Act, are, therefore, amenable to the revisional jurisdiction of the High Court. It is one of the important duties of the High Court to set the acts of the subordinate Courts right in appropriate cases.

17. In the present case, the learned Sessions Judge has acted in utter disregard .to the law .and is, therefore, a fit case for the exercise of revisional jurisdiction by this Court.

18. For the purpose of the present case, it will not make any practical difference. However, following the principle of exercising constitutional jurisdiction in the cases in which there is no other efficacious remedy, the petition is converted into revision and the order of the Sessions Judge is set aside. The case is remanded to the Sessions Judge, for proceeding with it in accordance with the law. First of all, he shall record statement of the complainant under section 200, Cr.P.C. and decide whether to dismiss the complaint or bring it on record for proceeding with trial. For the purpose of taking such decision he may direct an enquiry or investigation. In case he decides to bring the complaint on record, he may consider the question of passing order under section 7 of the Illegal Dispossession Act. Since much time has already passed, the learned Sessions Judge is directed to dispose of the complaint expeditiously. H.B.T./H-15/K Case remanded.