2006 P Cr (PLP)

IJAZ AHMAD CHAUDHRY, J.

The petitioner has challenged the order, dated 12-10-2005 passed by the learned Sessions Judge, Sialkot through this revision petition, whereby complaint filed by the petitioner under section 3 of the Illegal Dispossession Act, 2005 has been dismissed summarily.

2. The brief facts of the case are that the petitioner had filed a private complaint under section 3 of the Illegal Dispossession Act, 2005 against respondent No.1 claiming that he was owner in possession of land measuring 13 Kanals and 15 Marlas comprising Khewat No.I28, Khatooni Nos.510 to 517 Register Haqdaran for the year 1992-93, situate in village Harrar, District Sialkot. However, Mutation No.1856,-dated 17-10-1994 was attested in favour of one Muhammad Tufail, who further transferred four Kanals and five Marlas land in favour of respondent No.1 on 9-6-2005, but the said respondent in excess of his entitlement had illegally and forcibly possessed 7 Kanals and 15 Marlas land.

3. The learned Sessions Judge had called for report from S.H.O. concerned, which was received and through the impugned order private complaint has been dismissed summarily.

4. The learned counsel for the petitioner has contended that statement of the petitioner was not recorded and it was considered that the petitioner is not owner in possession of the said property exclusively, but the documentary evidence produced to support the private complaint was not considered and the private complaint has been dismissed in a hasty manner through the impugned order merely on surmises and conjectures; that the learned Sessions Judge has failed to exercise the jurisdiction vested in him properly; that specific allegation was levelled that the respondent had illegally possessed the land owned by the petitioner and recording of the evidence was necessary, hence an opportunity may be afforded to the petitioner to prove his case.

5. The learned counsel for the respondent No.1 has opposed this petition on the ground that it is a settled law that special proceedings were to be conducted under section 5 of the Illegal Dispossession Act, 2005 and after receipt of the complaint, the Court had referred the matter to the S.H.O. concerned for investigation, who then submitted his report that it was matter of civil nature and the police had no jurisdiction to interfere in it because the matter related to the civil Court; that the petitioner was not owner in possession of .the whole land as claimed by him and the impugned order is sustainable in the eyes of law 'as no offence under the new enactment has been committed by respondent No. 1.

6. I have heard the learned counsel for the parties and perused the impugned order as well as the documents attached with the revision petition and the relevant law.

7. In the private complaint the petitioner had levelled a specific allegation that respondent No.1 had only purchased 4 Kanals and 5 Marlas of land from one Muhammad Tufail, but in excess of his entitlement he had taken possession of 7 Kanals and 15 Marlas of land owned by the petitioner. To curb the activities of the property grabbers the Illegal Dispossession Act, 2005 has been enacted in the Statute with effect from 7th July, 2005 and subsection (1) of section 3 thereof says that "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 owners or occupier of such property". Subsection (2) of section 3 provides penalty of imprisonment for the contravention of the provisions of subsection (1), which may extend to 10 years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A, Cr.P.C. According to the definitions given in section 2(c) "occupier" means the person who is in lawful possession of a property; (d) "owner" means the person who actually owns the property at the time or his dispossession, otherwise than through a process of law; and (e) "property" means immovable property. Under section 4(1) the offence regarding contravention of section 3 is exclusively triable by the Court of Session on a complaint. Subsection (2) thereof says that said offence shall be non-cognizable, but under subsection (3) the Court at stage of the proceedings may direct the police to arrest the accused. Section 5 provides the procedure to deal with the complaint and under subsection (1) thereof upon a complaint the Court may direct the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court, but under the proviso the said period can be extended on showing good reasons. Then subsection (2) says that on taking cognizance of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay, sufficient reasons shall be recorded and subsection (3) lays restriction on unnecessary adjournments, which will not be for more than 7 days. Sections 6, 7 and 8 are regarding the relief, which the Court can grant during the proceedings as an interim measure or after completion of the same and the procedure to execute the order. The provisions of the Code of Criminal Procedure, 1898 (V of 1898) have also been made applicable to proceedings under this Act through section 9 thereof.

8. A resume of the above provisions is that on filing of complaint under the Illegal Dispossession Act, 2005, the Court has to first refer the A-matter to the 5.1-1.0. concerned for investigation into the matter and after receipt thereof cognizance will be taken by the Court and the trial, proceeded. It is not out of place to mention here that the police opinion is not binding on the courts, but the function of the police is to collect the evidence only after joining both the parties during the investigation and place it before the Court, which is empowered to pass final orders on the basis of evidence adduced before it. No doubt in this case the matter was referred to the S.H.O. concerned, but he had only submitted parawise comments to the private complaint and did not investigate the matter. The impugned order itself finds mention that the S.H.O. had appeared in the Court and showed ignorance about the enactment of the Special Act and he had submitted a vague report. The purpose of investigation as defined in section 4(1) of the Cr.P.C. is to collect the evidence, but the report of the S.H.O. submitted in the learned trial Court shows that no investigation was conducted by him to collect the evidence for and against the allegation levelled in the complaint, rather he stated that the police had no jurisdiction to interfere in the matter. The learned Sessions Judge should have again referred the matter to the S.H.O. concerned for proper investigation under section 5(1) of the Illegal Dispossession Act, 2005 and then further proceedings could be taken up after submission of report by the S.H.O., but the perusal of the impugned order shows that the private complaint has been dismissed summarily without referring to any document while holding that the E petitioner was neither owner of 13 Kanals, 15 Marlas of land in Khewat No.128 Khatooni Nos.510 to 517 situate at village Harrar Tehsil and District Sialkot as alleged by him in para. No.1 of the complaint nor Shahid Hamid respondent had trespassed or taken into possession even an inch of the land owned by Muhammad Younis petitioner, whereas the latter had levelled a specific allegation that respondent No.1 had only purchased 4 Kanals and 5 Marlas of land from one Muhammad Tufail, but in excess of his entitlement he had taken possession of 7 Kanals and 15 Marlas of land owned by the petitioner. The learned trial Court does not appear to have exercised the jurisdiction vested in it in a proper manner while passing the impugned order, which being not sustainable in the eyes of law is set aside and the case is remanded to the learned Sessions Judge, Sialkot for decision afresh in accordance with the provisions of the Illegal Dispossession Act, 2005. This Criminal Revision stands accepted. N.H.Q./M-50/L?????????????????????????????????????????????????????????????????????? Revision petition allowed.