2012 PLP 633 (MLD)

ABDUL WAHEED KHAN, J.

An application under section 265-K, Cr.P.C. filed by the present petitioner/accused, in a private complaint filed under sections 3 and 5 of the Illegal Dispossession Act, 2005, was dismissed by Addl. Sessions Judge, Ferozwala vide order dated 18-7-2011. Through the instant constitutional petition, the petitioner has made a prayer for setting aside the same and for his acquittal.

2. The contentions of counsel for the petitioner are that:-- (a) The trial court required the S.H.O. concerned to file a report and after holding an inquiry, it was reported that the present petitioner is in possession of the land measuring 313 kanal 9 marla as against his entitlement of 636 kanal of land. (b) The Halqa Patwari has also given a similar report. (c) The complaint itself does not show that the complainant was in possession of the property and that the petitioner dispossessed him illegally by show of force. (d) The revenue record shows that the petitioner is in possession of land measuring 313 kanal 9 marla and not 428 kanal. (e) Para-7 of the complaint finds mention that the local police is sitting at the spot and that they are not permitting the complainant to enter the property. (f) The petitioner has, bonafidely, filed an application before the revenue authorities for the demarcation and partition of the land and the proper course for the respondent/complainant should have been to contest the same and if it is found that the petitioner is in possession of land over and above his entitlement, he would be dispossessed there-from. With these submissions, it is prayed that the impugned order be set aside and while accepting the application under section 265-K, Cr.P.C, he be acquitted of the charge.

3. Conversely, the contentions of counsel for the respondent are that there is a factual controversy between the parties and the same cannot be resolved through the instant constitutional petition and also that there is a specific allegation in para-7 of the petition that the complainant was dispossessed forcibly. It is submitted that although the police has not given a report, favourable report to the complainant but the same is not binding on the court. With these submissions, it is prayed that this petition be dismissed.

4. Heard.

5. An application under section 265-K, Cr.P.C., filed by the present petitioner/accused, in a private complaint filed under sections 3 and 5 of the Illegal Dispossession Act, 2005, was dismissed vide the impugned order. The operative part of the same is in the following words:-- "It is specific allegation of the complainant that he purchased certain property and certain property was taken on lease. The complainant has levelled specific allegation that he has been dispossessed illegally on specific time and date. All the points raised by the accused/petitioner require evidence. Therefore, application under section 265-K, Cr.P.C. is hereby dismissed".

6. The first portion of the said para contains the allegations and accusation made in the complaint. The reasons for the dismissal of the application has been given in the latter part. The only reason given by the trial court is that all the points raised by the accused petitioner require evidence. The same does not appear to be a valid reason for the dismissal of the application. It is a cardinal principle of law that judgment or order must be speaking one, so that its reader may understand with clarity the reasons for passing the same. It is imperative that every order passed, under the provisions of any statute in judicial or quasi judicial capacity or even in executive capacity, should contain reasons. There should be objectivity in the reasons. The expression "reason" has not been defined in any law but in common parlance the expression denotes an action taken or order passed by the person, office or authority which is reasonable, conforming to the requirement of reasonability.

7. The proper course for the trial court should have been to consider all the points raised before it during the course of arguments and then to decide each point after assigning valid reason for the same. Since the said requirement is lacking in the impugned order, therefore, the same is not sustainable and thus set aside. The application under section 265-K, Cr.P.C. shall be deemed to be pending. The matter is remanded to the trial court for decision of the said petition afresh, in the light of observation made above. N.H.Q./M-401/L Case remanded.