2008 PLP 1044 (YLR)

SYED PIR ALI SHAH, J.

Mr. Sarfaraz Ahmed learned counsel for the applicant argued that the impugned order suffers from material irregularity and illegality as learned trial Court failed to conduct proper trial in the case and did not record evidence to be adduced by the parties in support of their case. He submits that the applicant is in possession of the property in question since last about 30 years. His contention is that the trial Court did not follow the due procedure of trial as laid down in sections 5 to 8 of the Illegal Dispossession Act, 2005. He has therefore, filed this criminal revision with a prayer that impugned order, dated 17-7-2006 may be set aside and case may be remanded to the trial Court for adopting proper procedure of trial and to decide the matter in the light of relevant law. After proper appraisal of the matter. Mr. Mukesh Kumar G. Karara learned counsel for the respondent No.1 fairly conceded that legal procedure as contained in section 8 of the Illegal Dispossession Act, 2005 has not been adopted by the trial Court. He submits that the trial Court to decide this case after conducting proper trial and recording evidence produced by the parties and to decide the case as afresh. Learned State counsel Mr. Muhammad Iqbal Memon also argued in the same breath as according to him neither proper trial was held nor parties were afforded chance to adduce their evidence. Perusal of the impugned order, dated 17-7-2006 shows that Mr. Muhammad Ishaq Arbani Vth Additional Sessions Judge on the basis of report submitted by S.H.O. P.S. C-section directed concerned police to remove the encroachment over the plot in question in presence of the concerned officers of Taluka Municipal Council, Sukkur. It is quite apparent from the impugned orders that the Presiding Judge of Court of 3rd Additional District Judge Sukkur without recording evidence to be produced by both the sides and without initiating trial of the case, passed impugned orders in haste. He has neither referred relevant provisions of law nor discussed the same while passing impugned order. Section 8 of the Illegal Dispossession Act, 2005 clearly provides that on conclusion of trial, if the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the Court may, at any time of passing order under subsection (2) of that section direct the accused or any person claiming through him for restoration of the possession of the property to the owner or, as the case may be, the occupier, if not already restored to him under section

7. Trial Court while not adopting due legal procedure contained in the relevant law has committed material irregularity and illegality and as such, impugned orders cannot be sustained as legal speaking order on merits. The impugned orders are, therefore, set aside and case is remanded to the trial Court with direction that the proper investigation and procedure must be adopted as laid down under sections 5 to 8 of the Illegal Dispossession Act, 2005. The parties whereof may be afforded opportunity to adduce their evidence before the trial Court and the matter may be decided on merits as afresh. This criminal revision is allowed with these observations. H.B.T./R-10/K Order accordingly.