P L D 2009 Peshawar 81 (PLP)

SYED YAHYA ZAHID GILANI, J.

Darya Khan(respondent herein) instituted a complaint for restoration of possession of his house, against Mir Daraz, Jehanzeb and Rehmatullah (Petitioners herein) under sections 3, 4 & 7 of the Illegal Dispossession Act. The petitioners/accused moved an application in the trial Court for their acquittal under section 265-K, Cr.P.C., but vide the impugned order dated 28-11-2008, learned Additional Sessions Judge-IV, Bannu, dismissed the same. Hence, this revision petition.

2. I have heard arguments of Sardar Naeem Khan, Advocate for the petitioners-accused, and Mr. Salimullah Khan Ranazi, advocate for the respondent-complainant. Record has been consulted.

3. The question for determination herein is that whether the petitioners-accused have acted, in any manner, to attract applicability of section 3 of the Illegal Dispossession Act against them?

4. On going through the copy of complaint, it revealed that the complainant-respondent has categorically mentioned in paras. Nos.2 and 3 of the complaint that the disputed house measuring 18 Marlas was delivered by him to accused-petitioners for their use as residence, about 5-6 years prior to the filing of complaint, on the condition that the petitioners-accused would, in lieu thereof, render him domestic services. Now, it is stance of the complainant-respondent that since the accused-petitioners have declined to serve him, they have converted their status to "unlawful occupiers" of the house thereby they have grabbed the house in question. Hence, they are liable to be punished and the possession of the house is to be restored to him.

5. After hearing learned counsel for the parties, I conclude that the plea of complainant-respondent is not tenable. 'The plain reading of section 3(1) of the Illegal Dispossession Act discerns that it applied to cases wherein somebody enters into or upon any property with intention to dispossess the lawful owner or occupier of that property and thereby wants to grab, control or occupy that property. Such phenomenon is not at all existing in the instant case. The accused-petitioners .were admittedly inducted in. the house in question by the owner (complainant-respondent) under an admitted oral agreement that in return the accused-petitioners shall render domestic services. Therefore, the entry of accused-petitioners in the house in question was a lawful entry as tenants. If at all there is any grievance of complainant-respondent that the accused-petitioners have refused to render him the promised domestic services in lieu of their occupation of the house, according to the oral agreement existing in between them, he may, if so advised, initiate ejectment proceedings against them at a proper forum. Since the accused-petitioners were lawful occupiers of a house in question in terms of section 2(c) of the Illegal Dispossession Act, the present complaint was not at all entertainable against them and there was no likelihood of their conviction in the said complaint proceedings. As such, their application under section 265-K, Cr.P.C. was carrying sufficient merits for acceptance. Learned trial Court rejected their application with an erroneous view of the matter which is not sustainable being not in accordance with law.

6. This revision is, therefore, accepted, the impugned order of learned trial court is set aside and by accepting the application of petitioners-accused under section 265-K, Cr.P.C. they are acquitted in the case. H.B.T./72/P Petition accepte