2018 PLP 81 (YLRN)

FARRUKH GULZAR AWAN, J.

Through the above captioned constitutional petition under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973, petitioners Taimoor Ahmad and Muhammad Altaf have called in question the legality of order dated 3.7.2009 passed by the learned Additional Sessions Judge, Mian Channu in private complaint titled "Saad Ahmad Khan v. Taimoor Ahmad and 9 others" filed by respondent No.2 under Sections 3, 4, 7 AND 8 of The Illegal Dispossession Act (XI of 2005) whereby after inquiry under Section 202 Cr.P.C., the petitioners and respondents Nos.3 to 10 were summoned to face the trial of aforesaid private complaint.

2. Succinctly, the facts of the case are that respondent No.2 filed the aforementioned private complaint against the petitioners and respondents Nos.3 to 10 alleging therein that on 27..4.2009 at about 4 O'clock, the petitioners along with respondents Nos.3 to 6 while armed with fire arms, forcibly dispossessed respondent No.2 from his agricultural land measuring 79-Kanals, 15-Marlas situated in square No.53, Qilla Nos.1 to 10 and square No.54 Qilla No.1, in Chak No.2/8-AR, Tehsil Mian Channu, District Khanewal. It was further alleged that the aforesaid persons in connivance with respondents Nos.7 to 10 got prepared false and forged documents in respect of the property in dispute in order to deprive respondent No.2 from his lawful property.

3. Learned trial Court, after recording cursory evidence of respondent No.2, referred the matter to the learned Area Magistrate for inquiry under section 202, Cr.P.C. and also to visit the spot through his subordinate, who after recording the cursory statements of witnesses, deputed his Naib Court for spot inspection. The Naib Court visited the spot, recorded statements of witnesses, obtained affidavits, prepared map of the land and submitted his report and the learned Area Magistrate while relying on the said report, forwarded complaint under Section 202 Cr.P.C. being prima facie made out against the petitioners and respondents Nos.3 to 10 to the learned trial Court, who on receiving said report, summoned the petitioners as well as respondents Nos.3 to 10 to face the trial under the Act ibid in the terms of impugned order dated 3.7.2009. Hence, this writ petition.

4. Learned counsel for the petitioners has contended that dispute between the parties was essentially of civil nature and both the parties had filed civil suits against each other prior to the aforementioned alleged incident; that the learned Civil Court had already issued injunctive order in respect of the property in dispute; that the procedure provided under section 202, Cr.P.C. would not be applicable to the proceedings initiated under this Act being barred by Section 9 of the Act ibid, which can only be applicable when no specific provision is provided under the Act having overriding effect and as such the impugned order is liable to be set aside.

5. On the other hand learned counsel for respondent No.2 assisted by the learned Assistant Advocate General has vehemently opposed this petition.

6. Arguments pro and contra have been heard. Available record perused.

7. Upon the aforesaid complaint of respondent No.2, learned trial Court directed the learned Area Magistrate for holding an inquiry under Section 202 Cr.P.C. after spot inspection. Illegal Dispossession Act, 2005 is a Special Law having overriding effect in the terms of Section 4 and has been promulgated to rid the people from menace of Qabza groups and land grabbers and also to protect the right of owners and lawful occupants as well. The trial of an accused under the Illegal Dispossession Act, 2005 cannot be equated with the trial in a complaint under section 190, Cr.P.C.

8. Under this Act cognizance of offence under Section 4 can be equated with section 154, Cr.P.C. and the provisions of section 5(1) of the Act ibid can be equated with report under section 173, Cr.P.C. Reliance in this respect is placed on the landmark judgment of Hon'ble Supreme Court of Pakistan reported as "Mst. Inayat Khatoon and others v. Muhammad Riaz and others 2012 SCMR

229. The relevant paragraph is reproduced as under:-- "In fact complaint under the Act could be equated as complaint under section 154, Cr.P.C. whereas report under section 5(1) could be equated as complaint under section 173, Cr.P.C. The Court on perusal of such report and other material could take cognizance as provided under section 190, Cr.P.C. but in no way the complaint under section 5(1) can be equated as private complaint to be processed under section 200, Cr.P.C. before a Magistrate."

9. Under section 9 of the Act ibid, the provisions of Code of Criminal Procedure have specifically been made applicable to the proceedings under this Act unless barred by any of its own provision. Upon taking cognizance under section 4 of the Act ibid, the learned trial Court has to follow the procedure specifically provided under section 5 of the Act ibid instead of procedure provided under section 202, Cr.P.C. being barred under section 9 of the Act ibid. The procedure adopted by the learned trial Court is foreign to the language of this Act and is not appreciateable. Learned trial Court has committed material irregularity and illegality while forwarding the matter to the learned Area Magistrate for inquiry under section 202, Cr.P.C., which is not sustainable and is liable to be set aside. In view of above, the writ petition in hand is allowed, impugned order dated 3.7.2009 is set aside and the case is remanded to the learned trial Court with the direction to proceed with the trial in the terms of sections 3, 4 and 5 of the Act ibid. Respondent No.2 is directed to appear before the learned trial Court on 8.2.2015. Since the matter is old one relating to year, 2009, therefore, the learned trial Court is directed to expedite the conclusion of trial preferably within a period of 30-days from the next date of hearing by conducting day to day proceeding under intimation to this Court through the Deputy Registrar (J). WA/T-6/L Petition allowed.