2013 PLP 1015 (YLR)

SHAH JEHAN KHAN AKHUND-ZADA, J.

Syed Taskeen Ali Shah petitioner through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has challenged the impugned order dated 2-5-2012 passed by Additional Sessions Judge-VI, Peshawar whereby he dismissed the complaint of the petitioner under section 3 of the Illegal Dispossession Act, 2005 being not maintainable.

2. Brief facts of the case are that the petitioner/complainant Syed Taskeen Ali Shah filed a complaint under section 3 of the Illegal Dispossession Act, 2005 against Muhammad Amin and ten others respondents Nos.1 to 11 herein in the Court of the learned Sessions Judge, Peshawar alleging therein that he along with legal heirs of Chiragh Shah are the sole owners of the disputed property bearing Khasra Nos.2115 and 2116 measuring 3 Kanals and 8 Marlas situated at Tehkal Payan Peshawar; that there are two shops in Khasra No.2115 while in Khasra No.2116 there is a Mazaar of Hazrat Pir Zarif Shah, graveyard and some vacant space is situated which is the joint ownership of the complainant/petitioner as well as the legal heirs of Chiragh Shah; that the complainant and others instituted ejectment petition against the respondents regarding the shops in dispute which was allowed by the learned Rent Controller against which the appeal of the respondents was also dismissed by the learned Appellate Court. Thereafter the father of the petitioner filed an execution petition and has taken the vacant possession of the decretal property. After taking the possession of the disputed shops, the complainant hired the services of his brother Sajjad to take care of the disputed property and he also usually visited the same. That on 10-1-2012 the respondents along with his duly armed 500/600 persons came there and have illegally took the possession of the suit property by destroying the premises of the shops and graveyard and the goods lying in the said shops. The matter was reported through daily diary but no F.I.R. has been registered against the respondents. Hence he has filed the complaint under section 3 of the Illegal Dispossession Act, 2005 against the respondents and after hearing the learned counsel for the parties, the complaint was dismissed by the learned Additional Sessions Judge-VI, Peshawar vide order dated 2-5-2012 which is now impugned herein.

3. We have heard the learned counsel for the petitioner and have also gone through the materials available on file.

4. The question for determination before this Court is as to whether the facts and circumstances of the instant case do constitute the offence punishable under section 3 of the Illegal Dispossession Act, 2005 which provision of law having direct relevance with this petition is reproduced below:-- "

3. Prevention of illegal possession of property, etc.

(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property. (2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provisions of section 544 of the Code."

5. According to contents of the complaint it is admitted by the complainant that he along with the legal heirs of deceased Chiragh Shah are the owners of the disputed property but the said legal heirs have neither filed any complaint before any Court that their property has been forcibly/illegally taken by the respondents nor they have come forward to support the claim of the petitioner regarding illegally dispossession of the suit property. Perusal of the impugned order of the learned Additional Sessions Judge-VI, Peshawar shows that two civil suits wherein the present petitioners is also a party, are pending adjudication before the Civil Court which were decided against the petitioner by the trial Court and his appeals are now pending before the Appellate Court, therefore, it is a matter of pure civil nature and at this stage complaint under section 3 of the Illegal Dispossession Act, 2005 is not maintainable and thus, the learned Addl. Sessions Judge has rightly dismissed the complaint being not maintainable which cannot be set at naught by this court in its constitutional jurisdiction. Consequently, this writ petition stands dismissed in limine. MWA/12/P Petition dismissed.