P L D 2007 Quetta 72 (PLP)

MEHTA KAILASH NATH KOHLI, J.

This order shall dispose of Constitutional Petition No.(S)40 of 2005 as well as Constitutional Petition No.(S)41 of 2005, as common question of law is involved. Facts of the case, in brief, are that petitioners in Constitutional Petition No.(S)40 of 2005, filed an application before Deputy Collector/Collector Nasirabad on 11th May, 2001, for partition of joint property situated at Mauza Shori Darabi (Androon), Tehsil Chattar, District Nasirabad bearing Khewat No.1, Khatooni No.29, Khasra numbers 21/10, 22/5, 22/6, 34/1, 35/1, 36/1, 37/1, 38/1, 38/2, 39/1, 62/1, 63/1, 63/2, 64/1, 65, 66/1, 67/1, 83/3, 84/1, 85/1, 86/1, 87/1, 87/2, 88/1, 88/2, 110/2, 112, 113/1, 114, 115/1, 132/3, 132/4, 133/1, 133/3, 134/1, 134/2, 135/1, 135/2, 136/1, 136/2, 137/1, 137/2, 158/1, 159/1, 160, 161/1, 162/1, 179/3, 180/1, 181/1, 182/1, 183/1, 184/2, 204/6, 204/7, 204/8, 205/1, 205/2, 206, 206/3, 206/4, 207/1, 207/2, 207/3, 208/3, 208/4, 226/2, 227/1, 227/2, 228/1, 228/2, 229/1, 229/3, 230/1, 230/2, 250/6, 251/1 and 252/2, measuring 640 acres, 1 rod, 21 pole, 80 Qitats comprising of 16 shares; out of which, the petitioners having five shares as their respective share. While in Constitutional Petition No.(S)41 of 2005, petitioners claimed land bearing Khewat No.6, Khatooni No.6, Khasra numbers 257, 258, 259, 260, 261, 262, 264, 265, 266, 269, 270, 272, 273, 275, 280, 281, 282, 283, 284, 285, 286/1, 288, 289, 290, 291 and 292, measuring 2852 rods, 23 poles, 28 Qitats, comprising of seven shares, situated at Mauza Shori Darabi (Bairoon), Tehsil Chattar, District Nasirabad. Record contemplates that the said application was resisted by private respondents on the ground that a civil suit in respect of proprietary rights titled Haji Abdul Rahman and others v. Bashir Ahmed and others, is pending adjudication in the competent court of jurisdiction. Record further reflects that in the Revenue Record disputed property has been mentioned as government land, and petitioners as well as private respondents have been shown as bazgars of 16 shares. The Executive District Officer (Revenue) Nasirabad, vide order dated 1st December, 2001, directed Revenue Officer Chattar, to partition the property according to Land Revenue Act. Against aforementioned order, respondent No.1 filed a review application on the ground that the then Executive District Officer (Revenue) had no jurisdiction to pass such order while holding temporary charge of the post. The learned Executive District Officer (Revenue) Nasirabad, vide order dated 19th June, 2002 directed the Naib Tehsildar/Revenue Officer, Chattar for partition of the property. Being aggrieved of the aforementioned order, private respondents filed appeal before the Land Commissioner/Chairman, Revenue Tribunal-I, Quetta, who on scrutiny, came to line conclusion that the Executive District Officer (Revenue) had no jurisdiction to adjudicate upon the matter, as such; set aside the order dated 19th June, 2002 and remanded the case to Executive District Officer (Revenue) with the following observations: "(i) Fresh proceedings under section 135 of the Land Revenue Act may be initiated; (ii) A report from the revenue staff with regard to site position may be obtained and in partition proceedings the areas sold by both the parties may be substracted from their respective shares; (iii) Both the parties should be afforded full opportunity to explain their pleas.' Petitioners being aggrieved of the order of Land Commissioner/Chairman, Revenue Tribunal, had filed revision petition before the Senior Member, Board of Revenue, Quetta. The learned Senior Member, Board of Revenue after hearing the parties and appraisal of record, vide order dated 28th May, 2003, concluded in the following terms:-- "

20. The nutshell of the above discussion is that-- (i) The first order dated 1-12-2001 was competently made by Mr. Zahid Ali Abbasi while holding the additional charge of the post of EDO (Revenue), Nasirabad; (ii) The review application of respondent Abdul Rahman was hopelessly time-barred. (iii) The second order of the 19-6-2002 declaring the first order of the 1-12-2001 without lawful jurisdiction was made by the successor EDO (Revenue), Nasirabad without seeking the prior approval of the next higher forum. (iv) The Land Commissioner/Chairman, Revenue Tribunal No.1 also erred by endorsing the conclusion, of the successor EDO (Revenue) on the point of competency of the predecessor EDO (Revenue) and passed order dated 18-11-2002 on a time-barred appeal.

21. For the reasons stated above, the revision petition is accepted and the orders dated 19-6-2002 and 18-11-2002 made by the EDO (Revenue) Nasirabad and the Land Commissioner/Chairman, Revenue Tribunal No.1 Quetta respectively are set aside. The order dated 1-12-2001 is upheld on the ground that it was made competently with lawful jurisdiction, and the partition proceedings on the spot should be commenced as per directions contained therein." Record further contemplates that against aforementioned order, private respondents filed Constitutional Petition No.(S) 40 of 2003 before this Court. During pendency of Constitutional petition, Executive District Officer (Revenue) Nasirabad submitted report dated 10th September, 2003. Contents of the report as reproduced as under:-- A Division Bench of this Court disposed of the said petition vide judgment dated 26th September, 2003. Relevant observations, are reproduced hereinbelow:-- "After hearing the learned counsel for the parties and perusing the comments, we have not been convinced that the order passed by learned Senior Member, Board of Revenue is contrary to law. Learned Counsel for the petitioners had not been able to point out any illegality or irregularity, which can warrant interference by this Court. It is well-settled that the Constitutional jurisdiction is discretionary one and is intended to administer the cause of justice and not to promote or encourage injustice. The High Court is not bound to set aside every irregular or illegal order, if it has not caused any material prejudice or gross miscarriage of justice. Learned Counsel for private respondents have pointed out that the provisions of section 5 of the Limitation Act were not applicable in the circumstances of the case. It has been stated that the impugned order has already been implemented and the partition has since been carried out. We do not find it a fit case for interference in exercise of our constitutional jurisdiction and the petition is accordingly dismissed. Since the impugned order has already been implemented and the petition being meritless, therefore, there is no justification for initiating proceedings in the Contempt Application No. (S)05 of 2003, and, the same is accordingly dismissed." Record further shows that against aforementioned judgment passed by Division Bench of this Court, a petition has been filed before the Hon'ble Supreme Court of Pakistan and is pending adjudication. A complaint was filed on 17th August, 2005 before Sessions Judge Nasirabad at Dera Murad Jamali, wherein `Additional' was added subsequently, under "section 3(2) of Illegal Dispossession Act, (hereinafter, called Act-XI of 2005) read with sections 544/200 Cr.P.C., for taking cognizance of the offence, as the private respondents have illegally occupied the said land. Record reveals that the learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali, without taking cognizance, dismissed the complaint on the ground that the said complaint should be routed through Magistrate First Class, as contemplated under section 190(2) of the Code of Criminal Procedure. While dismissing the said complaint, the learned Additional Sessions Judge also proceeded on merits and having passed certain remarks, which are conjectural in nature and proceeded to examine the interest of public at large, which was not within his domain vide judgment dated 12th September, 2005. Against aforementioned order of learned Additional Sessions Judge, Nasirabad at Dera Murad Jamali, the present petition was filed. Pre-admission notice was directed, in compliance whereof; Mr. H. Shakeel Ahmed and Mr. Abdul Jalil Lehri, Advocates appeared on behalf of respondents, and, contested the petition, while Mr. Abdul Raheem Mengal, learned Assistant Advocate-General appeared on behalf of official respondents. Mr. Narain Dass D. Kapoor, learned counsel for petitioners contended that the learned Sessions Judge could have taken cognizance by directly exercising jurisdiction under Special law. It was further contended that he had no jurisdiction to pass conjectural remarks and observations, and; may have sent the same to Magistrate for appropriate orders. On the other hand, learned counsel appearing for respondents contended that since, civil matter was pending, as such, criminal proceedings were uncalled for, and; supported the impugned judgment. We have heard the learned counsel for the parties and perused record of the case. Act XI of 2005 was enacted by the Legislature and notified vide Notification dated 7th July, 2005, wherein; illegal possession of the property was held to be an offence and not only it was made punishable to the extent of ten years imprisonment; it was also authorized by the law to award compensation to the affectees under section 544 of the Code of Criminal Procedure. Section 4 of the said Act provided that the cognizance of the offence is taken, where contravention of section 3 shall exist' by the Sessions Courts on a complaint and the offence was made as non-cognizable. Section 5 of the said Act further provided that upon a complaint, the Court is empowered to direct the officer-in-charge of a Police Station to investigate and complete the investigation and forward the same within fifteen days to the Court. The Court was further authorized to pass interim orders and in case of having established the fact that possession was illegally delivered, it was authorized by law to pass an appropriate order for putting the person into possession, who has been dispossessed from the land. The provisions of Code of Criminal Procedure have been applied by virtue of section 9 of the said Act XI of 2005. The provisions of Code of Criminal Procedure have been applied simultaneously; with reservation that in case, if special provision is available, that will override the provisions of Code of Criminal Procedure. Now the question before us is, as to whether direct complaint is entertainable by the Sessions Judge, who has been defined as Court by virtue of section-2 (a) of the Act XI of 2005. Sections 4 and 5 of the Illegal Dispossession Act XI of 2005 are reproduced hereinbelow:-- "

4. Cognizance of offence.-(1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on a complaint. (2) The offence under this Act shall be non-cognizable. (3) The Court at any stage of the proceedings may direct the police to arrest the accused." "

5. Investigation and procedure.

(1) Upon a complaint the Court may direct the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court: Provided the Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this subsection. (2) On taking cognizance of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay, sufficient reasons shall be recorded. (3) The Court shall not adjourn the trial for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days." A special procedure has been laid down and the word `Notwithstanding' is given in section 4 if it is read along with section-5 of the Act XI of 2005, has provided special procedure. The Court as defined in section 2(a) is a Court of Sessions Judge, who could alone, can take cognizance in the matter, having been authorized by law to refer the matter for investigation to the concerned S.H.O. of the area. Application of mind to proceed with the matter for the purposes of either for investigation of case, or trial tantamounts to taking of cognizance, which has been prescribed by sections 4 and 5 of Act XI of 2005. The Hon'ble Supreme Court of Pakistan in the case of Habib Bank Limited v. The State and 6 others (1993 SCMR 1853) has observed as under:-- "

Section 5(8) provides that a Special Court shall in all matter with respect to which no procedure has been prescribed by this Ordinance, follow the procedure prescribed by the Code for the trial of the cases by Magistrates. According to section 12 the provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force. These provisions show that where the Ordinance is silent about conduct of the proceedings of a trial, the provisions of Code of Criminal Procedure would apply otherwise overriding provisions contained in the Ordinance will apply for the trial of the case. Ordinance has regulated the procedure for the trial of scheduled cases of which Special Court has exclusive jurisdiction." The other question arises, as to whether, learned Additional Sessions Judge, was competent under law to have passed judgment, making observations against the petitioners, and; what course was open to him for deciding the complaint, which he was competent to entertain. In the case-in-hand, learned Additional Sessions Judge has proceeded to decide the case on the ground that the matter is sub judice before the Hon'ble Supreme Court, and thus, criminal proceedings are uncalled for. It is to note that both the proceedings (Civil/Criminal) can run parallel, provided question of title has been determined. The questions, as to whether dispossession has taken place, and; whether the title in the property vests with the petitioners, are the questions for facts, could had been dealt with only after taking evidence and allowing the opportunity to parties to lead evidence with liberty of being heard, which has not been done in the case in hand. In the circumstances of the case, we are left with no option, but to set aside the impugned order and direct the learned Additional Sessions Judge, Nasirabad at, Dera Murad Jamali to decide the same in accordance with provisions of law. Constitutional Petitions Nos.(S) 40 and 41 of 2005 stand disposed of with no order as to costs. H.B.T./7/Q Order accordingl