2007 PLP 1657 (YLR)

MAULVI ANWARUL HAQ, J.--This judgment shall decide Writ Petition No.3038 of 2006 and Writ Petition No.3039 of 2006 as common questions are involved.

2. To decide the common point involved in both these writ petitions, a detailed reference to the facts of the case would not be necessary. Suffice it to say that pursuant to the complaints filed by the respondents-ladies against the petitioners in these cases under section 3 of the Illegal Dispossession Act, 2005, vide orders dated 15-10-2005 passed in both these cases a learned A.S.J., Islamabad, directed the S.H.O. concerned to put the said complainants in possession of the plot in question. Admittedly, the order was ultimately complied with. Thereafer, charge was framed in both these cases on 11-9-2006. Evidence of the prosecution was recorded. The statements of the accused persons were recorded under section 342, Cr.P.C. Defence evidence was also recorded. The Tehsildar, Islamabad, was examined as Court witness. Vide judgment date 14-10-2006 the complaints were dismissed and the accused persons were acquitted. However, the learned A.S.J. refused to restore the possession that was taken over and delivered to the respondents under his said interim orders.

3. Learned counsel for the petitioners contends that the said order was without jurisdiction and in any case the complaints having been dismissed, the learned A.S.J. was bound under the law to place the petitioners in the same position which was got changed under his said interim orders. Learned counsel for the respondents, on the other hand, has contended that the petitioners were acquitted by giving them benefit of doubt and further although there is a provision in the said Illegal Dispossession Act for restoration of possession as an interim measures to the complainants, there is no provision for restoring it back to the person from whom it was taken, in case of dismissal of complaint.

4. I have gone through the copies of the records. The learned A.S.J. after considering the evidence on record has proceeded to acquit the accused persons vide judgment dated 14-10-2006. Admittedly, this judgment has not been questioned by filing a writ petition. Admittedly, the learned A.S.J. got the respondents placed in possession of the land in question while the petitioners were in possession by means of an interim order dated 15-10-2005. This order was passed at a point of time when the petitioners had yet to put in appearance and a process in this behalf was issued. The charge was framed on 11-9-2006. It is by now well settled that a trial commences when the charge had been framed. Section 7 of the said Act authorizes a Court to pass interim orders during the trial which, of course, means a stage after the commencement of trial. The trial having not been commenced on 15-10-2005, the learned A.S.J. had no jurisdiction to pass the said interim order which is liable to be set aside and declared void on this sole ground alone. At the moment, the position is that the complaints stand dismissed but the learned A.S.J. has refused to deliver back the possession to the petitioners which was taken over from them under his said interim orders. Apart from being illegal this is patently unjust.

5. So far as the said contentions of the learned counsel for the respondents are concerned, nothing turns on the same. Somehow or the other the Legislature, if any, has deemed it proper to make a civil suit triable in accordance with the provisions of Code of Criminal Procedure as a criminal trial. All the benefits are, therefore, available to the accused to which he is entitled as the favourite child of law. The matter has to be dealt with accordingly. As to the said second contention, the same is also without any force. It is again a time old principle that act of Court is not to cause prejudice to any party. It was because of the said interim order albeit without lawful authority that possession was snatched from the petitioners and delivered to the respondents and the Court having finally disposed of the matter is bound under the law to restore the parties to the original position.

6. Both the writ petitions are accordingly allowed and the S.H.O.; Police Station Bahra Kahu, District Islamabad, is directed to immediately restore the possession of the land in question to the petitioners. The compliance to be reported to the Deputy Registrar (Judicial) of this Court. No orders as to costs. F.B./S-51/L Petition allowed.