2007 PLP 209 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

Instant constitutional petition assailed judgment/order dated 6-7-2006 passed by the learned Additional Sessions Judge, Mianwali, to be declared illegal, void and of no legal consequence, whereby petitioner's application under section 265-K, Cr.P.C. was dismissed.

2. Succinctly, relevant facts are that respondent No.2 filed a complaint under section 3/4 of the Illegal Dispossession Act, 2005 against the petitioner and 14 others, with the allegations that they on 16-11-2005 at about 10-00 a.m. committed criminal trespass into his lands while riding on a tractor, armed with lethal weapons and forcibly dispossessed his servants. Learned Additional Sessions Judge, cognizant of the complaint filed by respondent No.2, summoned the accused before him and they moved an application under section 265-K, Cr.P.C. for their acquittal but the same was declined, as noted above. Petitioner thereafter filed instant constitutional petition and respondent No.2 in response to notice by this Court appeared and was represented through his counsel.

3. I have heard the learned counsel for the parties and have examined the record. Besides the lawful reasons weighed with the learned Additional Sessions Judge in refusing petitioner's application under section 265-K, Cr.P.C., none of the three submissions of the learned counsel for the petitioner persuaded me to upset/set aside the well reasoned/balanced order dated 6-7-2006. The first submission of the learned counsel for the petitioner that learned Additional Sessions Judge, could not be termed as Sessions Judge holding the Sessions Division of Mianwali, is belied by definition of Court of Sessions Judge given in section 9(4) of the Criminal Procedure Code. There is no ambiguity that an Additional Sessions Judge is a Sessions Judge within the meaning of Illegal Dispossession Act, 2005. As regards' second submission of the learned counsel for the petitioner that on suit of the petitioner, Civil Court has already restrained the complainant from entering into land in his possession, thus there is no probability of his conviction on the complaint in hand, the same has no legal value because neither the complainant (respondent No.2) nor the WAPDA have been impleaded to the suit, thus any injunctive order passed at the back of the owner/lesser, would not bind it or would adversely effect the rights of the complainant. The third submission regarding non-commission of offence in terms of section 3 of the Illegal Dispossession Act, 2005 by the petitioner is premature, as no such finding can be given without holding a trial or recording of evidence. Learned Additional Sessions Judge has rightly referred to reports requisitioned by him from the S.H.O. concerned, according to which dispossession of the complainant at the hands of the petitioner and his companions did take place.

4. Respondent No.2 was leased out the land in question by WAPDA through lease deed dated 20-10-2005, whereunder possession was delivered to him. Tentatively, petitioner has no lawful right to repossess the land or dispossess A the complainant under the garb of injunctive order dated 13-5-2006. Scan of record and impugned order revealed that controversy was correctly put to rest without committing any error of law/facts.

5. For the reasons noted above, no case for interference in constitutional. jurisdiction of this Court was made out. Even otherwise, a lawful decision within the ambit of conferred jurisdiction cannot be substituted on this petition, which being devoid of any merit, is dismissed with no order as to costs. H.B.T./A-216/L?????????????????????????????????????????????????????????????????????? Petition dismissed.