2013 PLP 622 (MLD)

SHAH JEHAN KHAN AKHUNDZADA, J.

Haji Abdur Rehman complainant/petitioner through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has challenged the impugned order dated 11-6-2011 passed by Additional Sessions Judge-Hangu whereby he dismissed the complaint of the petitioner under sections 3, 6 and 7 of the Illegal Dispossession Act, 2005.

2. Brief facts of the case are that the petitioner/complainant Haji Abdur Rehman filed a complaint under sections 3,6 and 7 of the Illegal Dispossession Act, 2005 against his brother Ghulam Syed and nephew Noor Sayed respondents Nos.1 and 2 herein in Court of the learned Additional Sessions Judge, Hangu alleging therein that he is owner in possession of the property measuring 6 Kanal out of 8 Kanal 6 Marla situated in Mauza Dallan Tehsil and District Hangu bearing Khsta No.560 Khatooni No.1395, Khasra No.2217 on the basis of fard Jamabandi for the year 2007-2008 while the respondents Nos.1 and 2 have no concern or any right to forcibly possess the said property from the petitioner; that 3/4 months prior they forcibly took the possession of the said property and destroyed all the standing wheat crops of the petitioner; that the petitioner reported the matter to the police for registration of F.I.R. but in-vain and hence the present complaint. During the pendency of the complaint, on 11-6-2011 the learned Additional Sessions Judge, Hangu petitioner/complainant dismissed the complaint in view of the admission of the complainant at the bar and passed the following order:-- "Complainant with counsel present. With reference to this complaint under the provision of Illegal Dispossession Act, 2005, the complainant admitted at the bar that he is now in possession of the property in dispute while accused/respondents are already abroad and not in position to re-occupy the property in dispute. In such circumstances no fruitful result could be achieved in this complaint and as such, further proceedings would result in mere wastage of time therefore, complaint in hand is dismissed without further proceedings."

3. We have heard the learned counsel for the petitioner and the learned counsel for respondent No.2 on pre-admission notice 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 an admitted fact that the petitioner and respondent No.1 are the real brothers while respondent No.2 is their nephew, so they neither belongs to a class of property grabbers nor Qabza Group, hence no case under section 3 of Illegal Dispossession Act has been made out. Reference is made to the judgment of a Full Bench of the Lahore High Court in Zahoor Ahmad and others v. The State and others (PLD 2007 Lahore 231), "Mobashir Ahmad v. The State (PLD 2010 SC 665) and "Habib Ullah v. Abdul Manan" (2012 SCMR 1533). Furthermore the complainant/petitioner himself stated at the bar before the trial Court that he is in possession of the suit property and the respondents who are stated to be abroad are not in a position to re-occupy the said property. Since the suit property is in possession of the petitioner, therefore, the question of illegal dispossession of the suit property at the hands of the respondents does not arise. It was a dispute between the two individuals over the possession of the property in dispute and the facts and circumstances of the case were not sufficient to attract the provisions of sections 3, 6 & 7 of the Illegal Dispossession Act, 2005 and thus, the learned Addl. Sessions Judge has rightly dismissed the complaint.

6. Resultantly, this writ petition being devoid of any merit is dismissed in limine. MWA/13/P Petition dismissed.