2015 P Cr (PLP)

MRS. SYEDA TAHIRA SAFDAR, J.

The petitioner Abdul Haq assailed order dated 20th August 2013 of Incharge Sessions Judge, Kalat Division at Mastung, whereby the complaint filed by him under section 3 of the Illegal Dispossession Act, 2005 (Act, 2005) was dismissed. The impugned order was questioned while contending that the trial court failed to appreciate the report called, in comparison to the facts and the circumstances of the case, thus a decision contrary to the material on the record, neither could be legal nor could hold the field. Further, the observation that the dispute between the parties was of civil in nature, was also due to misappreciation of the material on the record, thus, of no legal effect. Furthermore, proper opportunities for hearing were denied to him, thus he was deprived of his right. The prayer was for setting aside of the impugned order and acceptance of the complaint with an order under the Act 2005, against the respondent.

2. The respondents Nos.1 to 6 were put on notice and also to the Prosecutor General. All the concerned were heard and the documents on the record were perused. The documents available in the case file reveals that the petitioner filed a complaint under sections 3 and 4 of the Illegal Dispossession Act, 2005 with the assertions that the land situated in Mohal Mouza Pingove, Tappa Spezand, Tehsil Dasht, District Mastung commonly known as Damb Lehri was owned by him (petitioner) and his tribesmen, and their names appeared in the revenue record as such. Further, a suit was filed by the respondent Nos. 1 to 6 in the year 2003 for the same property, but it was dismissed by Majlis-e-Shoora Kalat Division at Mastung, and the order was upheld by this court. It was contended that the respondents not only interfered in his property, but also assaulted his Bazgars and forcibly stopped them from cultivation. The act was reported, the respondents were convicted for the act on completion of the trial by the Judicial Magistrate, Dasht vide order dated 25th August 2003. Despite the same the respondents continued with their conduct, not only interfered in the possession, but also , destroyed the standing crops, thus caused a loss of Rs.60,000 (Rupees sixty thousand). In addition the respondents had constructed houses at northern side of the property, thus caused them irreparable loss. It was prayed:

3. The learned counsel for the petitioner addressed the maintainability of the revision petition and placed reliance on: PLD 2009 Peshawar 70 Mian Bahadur Jan v. State P.Cr.L.J 2006 Lahore 1381 No judgment found on the referred page, 2009 MLD 1162 Habibullah v. State On merit it was stated that civil litigation had already attained finality, and at present no civil or criminal case is pending between the parties except the case in hand.

4. The learned counsel for the respondents Nos. 1 to 6 controverted the submissions and stated that the property, subject matter of the dispute, was entered in the name of the complainant with fraud and misrepresentation, while no decree of any court of competent jurisdiction existed in favour of the petitioners. In addition the report of Tehsildar, called by the trial court, also described their (respondents) possession.

5. The learned Deputy Prosecutor General was of the view that no case under the Illegal Dispossession Act, 2005 was made out, in view of para Nos. 4 & 5 of the complaint. Further, the complaint failed to disclose the area from which the petitioner claimed his dispossession. In addition the property described to be entered in the names of several persons in the record, but only the petitioner is before this court.

6. The learned counsel for the petitioner in reply only stated that the property which was in his personal possession was occupied by the respondents Nos.1 to 6 without having any legal right or title therein.

7. The petitioner invoked revisional jurisdiction of this court. The order sheet maintained for 27th August 2014 disclosed the fact that a query to the effect was put to the learned counsel for the petitioner "to explain as to how the criminal revision petition is competent against dismissal of a complaint under Sections 3 & 4 of the Illegal Dispossession Act, 2005." Thus before going into merit of the case this point has to be addressed. The learned counsel for the petitioner was of the view that against an order of conviction or acquittal an appeal lies, while against an order for dismissal of a complaint, no appeal is provided, thus the revisional jurisdiction of this court was invoked by filing the instant petition. The citations relied failed to deal with the proposition before this court. The petitioner approached the court of Sessions Judge by filing a complaint under the Illegal Dispossession Act, 2005, a special law, for specific purpose. The plain reading of the Act, 2005 reveals that it contained no provision to provide a right of appeal or revision to an aggrieved person against interim or final orders passed in the cases filed under the Act, 2005. The absence of the provisions to the effect never meant denial of right of appeal to an aggrieved person under the Act 2005. Rather Section 9 of the Act, 2005 is clear enough to extend the provisions of the Code of Criminal Procedure to the proceedings held under this Act, which is comprehensive enough to deal with the issue. Section 9 of the Act, 2005 reads as under: "Section

9. Application of code.--Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (V of 1898), shall apply to the proceedings under this Act." Thus absence of specific provision of appeal in the Act, 2005, no way effect the right of appeal or revision. Rather by virtue of section 9 of the Act the application of Cr.P.C. extended in the cases dealt under the Act, 2005 and be pressed when the difficulty arises due to absence of a specific provision. Thus an aggrieved person has a right of appeal or revision as provided in the Code for redressal of his grievances.

8. In the case in hand there is no order of conviction or acquittal of the accused on the allegations made in the complaint. In addition no charge was framed; rather the complaint was dismissed before taking cognizance of the offence and framing of the charge. There was only an order for conducting of investigation as required under section 5 of the Act, and on receipt of the report of Tehsildar Dasht, trial court concluded that the matter between the parties was purely of a civil nature, thus not fall within the ambit of Illegal Dispossession Act, 2005, resulted in dismissal of the complaint. The trial court yet to start the proceedings on completion of the investigation, but instead of taking cognizance of the offence on basis of the available material, arrived to the decision impugned in the instant petition. In absence of an order of acquittal or conviction on framing of the charge, a revision petition shall lie on dismissal of the complaint, this decide the maintainability of the petition. This court now has to look into the legality of the order in exercise of its revisional jurisdiction.

9. Now reverting to the merit of the case, the petitioner being the complainant was aggrieved of the act on part of the respondents, in result whereof he was not only dispossessed from his property, but the standing crops were also damaged and destroyed. It was also alleged that the respondents raised some construction on the land existed in his (complainant's) name. The report of the investigation submitted by Tehsildar Dasht described existence of the property in the names of several persons including the name of the petitioner. The relevant entry was carried out in the Revenue Record on 19th January, 2000. The physical possession at the site as described by the report with the persons namely Mir Ahmed, Muhammad Ishaq, Ali Akbar, Ghulam Rasool, Abdul Haq and Malik Nasrullah (present respondents) who not only occupied the subject land, but also constructed houses at northern side of the property.

10. This fact only described the physical possession with the respondents, but not enough to constitute an offence under the Act. Something more was required. The petitioner had approached the court to complain an act of dispossession from an immovable property existed in his name. A criminal act was alleged against the respondents, while the penal consequence for such an act provided in section 3 of the Act, 2005. Thus to establish a criminal liability on part of the respondents the complaint must be specific enough to describe the act as alleged, the extent of involvement of the respondents in commission therein.

11. In the case in hand the complainant claimed himself to be the recorded owner with further assertions about pendency of criminal and civil litigations between the parties, wherein the subject matter was the same property, which is subject matter of the instant compliant. The compliant was with the facts that the act of interference was made twenty days prior to filing of the complaint, when the standing crops of wheat were destroyed by the respondents, which causes loss of Rs.60,000 to him. In addition the respondents did not allow his (petitioner's) labours to cultivate the land. The unauthorized construction of houses on the property by the respondents though alleged, but with no necessary details. The contents of the complaint failed to disclose the measurement and the area of the property from which they were dispossessed. Even the measurement of the area where the alleged construction was raised no where disclosed, nor specified the period when such construction was raised. The mode of dispossession also remained to be stated. There was no allegation that the respondents were land-grabber and with show of force illegally occupied the land, subject matter of the complaint. In addition the report of investigation though described the possession of the respondents but unable to disclose when the act was committed, or even when the construction was raised.

12. The trial court properly assessed the available material and arrived to a decision on the basis of the contents of the complaint, in addition to the investigating report. No case for illegal dispossession could be made out on basis of the available material. No illegality or irregularity on part of the trial court had been pointed out which need interference by this court. There is no merit in the petition, which is hereby dismissed. HBT/85/Bal Petition dismissed.