P L D 2013 Balochistan 6 (PLP)

MUHAMMAD NOOR MESKANZAI, J.

Instant appeal is directed against the order dated 30th April, 2012 passed by the Incharge Additional Sessions Judge, Turbat whereby complaint filed by appellant under Sections 3, 4 and 8 of Illegal Dispossession Act, 2005 was dismissed.

2. Facts relevant for disposal of instant appeal are that the appellant filed a complaint against private respondents in the Court of Additional Sessions Judge, Turbat. It was alleged therein that he and his family members are lawful owners of property bearing Kh/Kh No.34/34, Khasra Nos. 181, 187 and 188 situated at Machat Balnigore, recorded in the name of his grant father namely Shaho, who had gifted only one piece of land to respondent No.1 Rasheed where upon he constructed a boundary wall and then sold out the same to respondent No.2 Fida Hussain. However, after lapse of time they illegally and unlawfully occupied all the landed property of complainant. The complainant through notables of the area approached the private respondents and requested them to vacate possession but they flatly refused to vacate the same.

3. Thereafter the matter was sent to Naib Tehsildar Balnigore for enquiry under section 3 of the Act, The Naib Tehsildar after enquiry submitted his report. On receipt of report charge was framed against respondents on 26-1-2012, to which they pleaded not guilty and claimed trial.

4. The private respondents after framing charge filed an application under section 265-K, Cr.P.C. The said application was opposed by the appellant, however, the learned trial Court vide order dated 3rd April, 2012 accepted the application and private respondents were acquitted of the charge, hence instant appeal.

5. Learned counsel for appellant submitted that the trial Court committed material irregularity by acquitting the private respondents at a pre-mature stage. There were sufficient material available on record to connect the respondents with the commission of offence but the learned trial court failed to take into consideration this aspect of the case. It was next contended that though the appellant was not the recorded owner, yet the property vests in appellant as he is entitled to inherit the same from his maternal grand father. The conclusion drawn by the trial Court are not supported from the material available on record.

6. We have considered the arguments advanced by learned counsel for appellant and have gone through the record. Perusal of the record reflects that admittedly appellant is not recorded owner of the property nor for that matter any material has been brought on record in support of his complaint. Perusal of the complaint reflects that grand father of appellant has granted a piece of land to respondents. No doubt there is no revenue record to such effect but the admission of appellant creates a great hurdle in his way. Besides, the contents of complaint do not reflect as to when the respondents occupied the land. Non mentioning of such fact by the complainant in his complaint creates serious doubt with record to applicability of the provisions of Illegal Dispossession Act. Besides a civil litigation is sub judice before the complete court of jurisdiction and the instant Criminal proceedings appear an attempt to prevent the said proceedings which is not permissible in the circumstances of the present case. There is no cavil to the proposition that any dispossession by a person prior to enforcement of Illegal Dispossession Act does not entitle the complainant to resort to the provisions of Illegal Dispossession Act, 2005. On our analysis, the finding drawn by the trial Court are neither perverse, speculative artificial in nature not suffer for many material irregularity. The trial Court keeping in view the facts and circumstances of the case has rightly allowed the application filed under section 265-K, Cr.P.C. as the law stands settled that incompetent proceedings must be buried at its very inception. Moreover, there is no particular juncture/stage provided in the Cr.P.C. for filing application under section 265-K, Cr.P.C. It is the idiosynerasy of an accused to make such an application and the judicial wisdom of the Court seized with the matter to take into account as to whether the application so filed can be disposed of in view of the material available on record. If the Court is satisfied that a valid, legal, justifiable, reasonable and speaking order can be passed on the basis of available record then there is no hitch and harm in pressing into service the provision of sections 265-K and 249-A, Cr.P.C. The trial Court has rightly allowed the application because in view of the facts and circumstances of the case there was/is no probability of the respondents being convicted of any offence, hence appeal is dismissed in limine. MWA/102/Q Appeal dismissed.