2012 P Cr (PLP)

IJAZ AHMAD CHAUDHRY, C.J.--Through this petition under section 439, Cr.P.C. read with section 561-A, Cr.P.C. the petitioner has sought setting aside the order dated 3-11-2009 passed by the learned Additional Sessions Judge, Lahore through which he has dismissed the second complaint instituted by the petitioner and acquitted the respondents.

2. The germane events forming the historical background of this revision petition are that the petitioner was the complainant of a private complaint filed under section 4 of the Illegal Dispossession Act, 2005 wherein the preliminary evidence was recorded and respondents were duly summoned to face the trial. The proceedings in that private complaint were going on when the petitioner absented herself from appearance before the learned trial court and, consequently, the private complaint instituted by the petitioner was dismissed on 11-9-2009 due to non-appearance of the complainant/petitioner which resulted acquittal of .the respondents as well. Aggrieved of the above said order the petitioner instituted another complaint which came up for hearing before the learned Additional Sessions Judge, Lahore and the same too confronted with the same result at initial stage vide order dated 3-11-2009. Hence, this revision petition before this Court.

3. The learned counsel for the petitioner contends that the learned Additional Sessions Judge, Lahore passed order dated 11-9-2009 in a hasty and flimsy manner without recording cogent reasons. The absence of the petitioner was neither wilful nor intentional which fact was totally ignored by the learned trial court while passing the impugned order. The second complaint filed by the petitioner was maintainable by virtue of the law laid down in the case of Bashir Ahmed v. Akbar and others (1995 PCr.LJ 1995) but such verdict was not properly appreciated by the learned trial Court. The petitioner was owner of the disputed property and the respondents have illegally deprived her of from ownership. On merits of the case the petitioner was at strong footing but the learned trial court did not provide opportunity to the petitioner to prove her ease, thus, the order dated 3-11-2009 passed by the learned trial Court is liable to be set' aside and the case is liable to be remanded back to the learned trial court for its fresh decision after considering the merits of the case. The provisions of section 203, Cr.P.C. clearly provide a remedy of second complaint but the learned trial Court has failed to appreciate the aforesaid provision of law in its true perspective as such the learned trial court has erred in law in dismissing the second complaint instituted by the petitioner, thus, the impugned order has caused a great miscarriage of justice.

4. On the other hand the learned Additional Prosecutor-General assisted by the learned counsel for respondents Nos. 2, 6, 7 and 8 contends that the order dated 11-9-2009 passed by the learned Additional Sessions Judge, Lahore was absolutely in accordance with the provisions of section 247, Cr.P.C. which empowered the learned trial court to dismiss the complaint if, after issuing process to the accused, the complainant absented himself at any subsequent date of hearing. The petitioner had not challenged the order dated 11-9-2009 before any forum and opted to institute another private complaint on the same grounds which was rightly dismissed by the learned trial Court vide order dated 3-11-2009. The provisions of section 3, of the Illegal Dispossession Act, 2005 do not apply to the case of the petitioner and as a matter of fact the best way available with her was institution of a civil suit by invoking section 9 of the Specific Relief Act, 1877, thus, the instant revision petition is liable to be dismissed.

5. Nobody has entered appearance on behalf of respondents Nos.3, 4 and

5. The report of Process Server to their effect is that they cannot be traceable. This revision petition is hanging fire from 2009 due to non-appearance of the above said respondents therefore, I would not like to adjourn it any more. Thus, the above said respondents are proceeded against ex parte.

6. After hearing the learned counsel for the parties and going through the documents appended with this revision petition it has straightaway been observed by me that the initial point of ponder to be decided in this petition is that whether the second complaint instituted by the petitioner was maintainable or not. Before parting with the above said proposition I would first like to visit the provisions of section 247, Cr.P.C. which endows the learned trial court with powers to dismiss the complaint if the complainant opts not to appear before the court at any subsequent stage after issuing process to the accused. For better appreciating the above said section is reproduced as under:-- Non-appearance of complainant.

If the summons has been issued on complainant and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day: Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case. Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable. Bare reading of section supra shows that the learned trial Court has absolute jurisdiction to dismiss the compliant due to non-appearance of the complainant at any subsequent date of hearing after summoning accused persons. The order dated 24-8-2009 appended with. this revision petition also established that the learned counsel for the complainant was present on the said date and in his presence the case was adjourned to 11-9-2009 on which date the complaint was dismissed and the respondents were acquitted.. Thus, I have no manner of doubt in my mind to declare that the complainant was well aware of the date of hearing and, thus, she could not say that her absence on 11-9-2009 was neither intentional nor deliberate. The second proviso to section 247, Cr.P.C. provides that nothing in the section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable. For this purpose section 4 of the Illegal Dispossession Act, 2005 is relevant which is reproduced hereunder: 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 A careful glance of afore-quoted provisions of law reflects that the offence committed by the respondents was non-cognizable and the learned trial Court had rightly passed the order dated 11-9-2009. Thus, it cannot be said that the learned trial court was not conferred with the powers to adjudicate upon the matter.

7. Now adverting to the question of maintainability of the second complaint on the same set of allegations I would like to observe here that the first complaint filed by the petitioner was at the, stage of supplying copies to the accused persons which means that the accused persons/respondents were duly summoned by the learned trial court and they were present before it to face the trial. All this shows that the complaint was not at its preliminary stage but the same was at the stage of its maturity because the respondents were duly called upon by the learned trial Court to face the trial. I may observe here that second complaint could only be filed if the proceedings were at initial stage requiring the complainant to establish genuineness of allegations set forth therein so as to summon the accused to face trial. Although the learned counsel for the petitioner has tried to get help from section'

203. Cr.P.C. by contending that remedy of second complaint was available to the petitioner after dismissal of first complaint yet the assertion made by the learned counsel has no force at all because the provisions of section 247, Cr.P.C, clearly bestowed jurisdiction to the learned trial court to dismiss the complaint of the petitioner after summoning of the accused at any date of hearing and in such circumstances the remedy available with the petitioner was to file an appeal against acquittal under section 417(2), Cr.P.C. and not to file second, complaint on the same subject-matter. As regard the case-law cited by the learned counsel for the petitioner, i.e. Bashir Ahmed v. Akbar and others (1995 PCr.LJ 1995) suffice it to observe that the fact and circumstances of the above said case do not match with the facts of the instant case because in the above cited case the learned trial Court has exercised its jurisdiction under section 203, Cr.P.C. but in the instant case the learned trial Court had dismissed the complaint under section 247, Cr.P.C.

8. The claim of the petitioner was that she was widow of late Ch. Fazal Karim who was owner of disputed property and after the death of her late husband she remained in touch with the property till 1995 but thereafter the respondents had grabbed her land with connivance of previous owners. On the other hand the respondents are also claiming themselves to be the bona fide purchasers of the disputed land through mutations sanctioned in their favour after fulfilling all the legal requirements. In the backdrop of such a situation the matter in issue seems to be a civil dispute between the parties and the petitioner can get her possession restored by setting the civil law into motion. Thus, the best way lying with the petitioner was to file civil suit for restoration of her ownership or the alleged possession and not institution of private complaint under the Illegal Dispossession Act, 2005. She has herself admitted in her private complaint that she was not in physical possession of the land in dispute and the allegation levelled by her that she was dispossessed by using force was altogether contrary to the facts of this case. According to the respondents they were also possessing mutation in their favour, which shows that they were not belonging to Qabza group or hardened criminal persons.

9. It may also not be out of place to mention here that the .Illegal Dispossession Act, 2005 had been inducted into criminal law, for the intruders called "property grabbers", also commonly known in local style of speaking as "Qabza Groups" or "land mafia" whose primary chore or errand is to illegally or forcibly take possession of immovable properties belonging to other persons by way of utilizing force. The contents and objectives of the Act attract only upon the above-narrated persons and the same do not apply on the persons who have no credentials or antecedents of being property grabbers or being member of a Qubza Group or land mafia. I have repeatedly asked the learned counsel for the petitioner to inform me whether respondents have any history of such like cases or not but the learned counsel for the petitioner remained unable to bring on record any substance which can disclose that the respondents have any credentials or antecedents of being property grabbers. The respondents also claim to. be the owners of the land in dispute and they are claiming their ownership by virtue of mutations in their favour. Thus, following the verdict laid down in the cases of Zahoor Ahmad and 5 others v. The Slate and 3 others (PLD 2007 Lahore 231) and Bashir Ahmad v. Additional Sessions Judge, Faisalabad and 4 others (PLD 2010 Supreme Court 661) it is observed here that the provisions of section 3 of the Illegal Dispossession Act, 2005 do not apply in this case.

10. I would not like to let it go here that the plain reading of complaint instituted by the petitioner reflects an impression that the same had been drafted on the style of a civil plaint which does not contain any allegation that the respondents intrude into the disputed property by dispossessing the petitioner or grabbed the property by applying force because, as stated above, the petitioner was not in physical possession of the property in dispute. Even the contents of the complaints instituted by the petitioner do not have any bearing of allegations falling within the ambit of section 3 of the Illegal Dispossession Act, 2005.

11. For what has been discussed above no jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning has been found by this Court so as to warrant an interference in the impugned order dated 3-11-2009 and this revision petition is, therefore, dismissed. H.B.T./N-64/L Petition dismissed.