2017 PLP 2341 (YLR)

SHAHNAWAZ TARIQ, J.

Through instant criminal revision application, applicants have impugned order dated 25.08.2015, passed by the Court of learned Ist Additional Sessions Judge, Sukkur in Cr. Complaint No.29 of 2011, Re: Lal Muhammad v. Abdul Rehman and others, whereby BWs have been issuing against the applicants.

2. Relevant facts narrated in instant revision application are that respondent No.1 filed direct complaint stating therein that he owns agricultural land situated in Deh Tarai, Taluka Salehpat, District Sukkur, which is being cultivated by him and his brothers and they are in possession of the said land since their forefathers. It is further stated that applicants were trying to occupy his land so also the adjoining land, which is the Muhag of the land of respondent, against such illegal act of accused persons, he moved applications to the high officials including police but neither his grievance was resolved nor any action was initiated in this context. Respondent No.1 filed application under section 22-A&B, Cr.P.C. against the harassment of the applicants vide Cr.Misc. Application No. 200 of 2011, wherein Mukhtiarkar (Revenue) submitted his report that all survey numbers in dispute were belonging to respondent. It is further averred that on 23.03.2011, at about 9.00 a.m., when respondent and his brothers were available at the land in question, applicants duly armed with deadly weapons came there and dispossessed them forcibly. Respondent approached the Police Station Kandhra for lodgment of FIR but no action was initiated by the police and ultimately he filed instant direct complaint. It is prayed to pass order for delivery of possession of his agricultural land and Mugah of the land of respondent.

3. Learned trial Court called report from concerned SHO and brought the direct complaint on record and vide impugned order issued BWs against the applicants, hence instant revision application.

4. Learned counsel for applicants contended that respondent has failed to mention the survey numbers and total area of the land in question from which allegedly he was dispossessed by the applicants; that respondent even in prayer clause has not mentioned the said details and mere mentioned delivery of possession of Muhag of the land, hence no offence has been committed by the applicants. Learned counsel further emphasized that learned trial court has not properly considered the material available on record while passing impugned order.

5. In rebuttal, learned counsel for respondent No.1 argued that due to mistake of counsel, survey numbers and other details were not been mentioned in the memo of direct complaint, however he has annexed documents along with direct complaint; that the report submitted by SHO also supported the allegations leveled by the respondent; that learned trial Court has passed a proper order, hence instant revision application is liable to be dismissed.

6. Learned DPG supported the arguments advanced by learned counsel for the applicants and contended that trial Court has not considered the material available on record prudently.

7. Heard arguments advanced by learned counsel for the parties and perused the material available on record minutely, which reflects that direct complaint filed by the respondent is silent regarding total area and survey numbers of the land. Furthermore, perusal of prayer clause (b) of the direct complaint emanates that respondent has prayed for delivery of possession of land situated adjoining to his land being Muhag land without disclosing any further detail of said Muhag land, meaning thereby that respondent is neither actual owner of said land nor aware of total area nor he has produced any documentary proof to prima facie establish his possession over said land. It is well settled that the complainant while alleging commission of offence of forcible dispossession from the land in question has to place the relevant material before the Court and narrate the entire incident honestly and any concealment of material facts with ulterior motives on his part would be fatal to the allegations of forcible dispossession from the immoveable property in dispute. The Illegal Dispossession Act, 2005, is a Special enactment promulgated to protect the lawful owners and occupier of immoveable property from their illegal and forcible dispossession from the property grabbers. The Act provides a distinctive procedure for initiating action and taking cognizance for the offence of forcible dispossession, and trial Court is bound to follow the parameters contemplated in the Illegal Dispossession Act, 2005, while taking cognizance of the offence within the meaning of owner or occupier of land in dispute. Consequently, complainant is bound to follow the prescribed procedure and prime facie establish his allegations by producing documentary evidence pertaining to his ownership and possession over the immoveable property in dispute and forcible dispossession by the accused. Reliance is placed on the case of Mst. Inayat Khatoon and others v. Muhammad Ramzan and others (2012 SCMR 229).

8. Adverting to the merits of the present case, the respondent in his direct complaint has neither mentioned the details of survey numbers owned by him nor total covered area of the land in question has been disclosed from which he was allegedly dispossessed by the applicants nor any other sound supportive material has been placed on record to establish his exclusive possession over the adjoining land being the Mohag of his land which clearly reflects that applicant has failed to comply with the basic requirements as contemplated in the Illegal Dispossession Act, 2005.

9. For the facts and circumstances discussed above, I am of the considered view that learned trial Court while passing impugned order, has committed illegality and gross infirmity and failed to adjudge the available material prudently which calls for interference of this Court. Consequently, instant revision application stands allowed and impugned order dated 25.08.2015, passed by the learned trial Court is set aside. JK/A-12/Sindh Revision allowed.