2007 PLP 1398 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

Learned counsel for the petitioners submits that late Justice (R.) Mian Qurban Sadiq Ikram was owner of three kanals of land situated at 110 Model Town Lahore; that on 31-5-1992 he distributed the said land by giving one kanal to Dr. Ayaz Mahmood and Babar Khalid, who are sons of petitioners while petitioner No.1 is real brother of late Justice (R.) Mian Qurban Sadiq Ikram; that two kanals of land was given to Majid Ikram and Amjad Ikram respondents; that on 12-6-1995 late Justice (R.) Mian Qurban Sadiq Ikram filed a petition under section 12(2) C.P.C. along with Dr. Ayaz Mahmood. Babar Khalid against Majid Kiram etc., in which compromise was. effected between the parties on 27-6-1995; that according to said compromise deed, which has been produced along with site-plan, was signed by late Justice (R.) Mian Qurban Sadiq Ikram; that on 27-1-2007 respondents Majid Ikram etc. forcibly turned out the petitioners from their house; that on hue and cry "Mohalladars" and police came there and the possession of said- house, which was constructed by the petitioners, was handed over back to them; that a day prior to the above stated occurrence i.e. on 26-1-2007 Majid Ikram respondent filed a civil suit for declaration with permanent injunction against Ayaz Mahmood etc. sons of the petitioners in which status-quo order was passed by learned Civil Judge; that thereafter on 24-3-2006 a false will was allegedly made by the respondents to the effect that whole three kanals of land was given to the respondents Majid Ikram etc; that Majid Ikram etc. respondents in this regard also made acknowledgement deed, which is dated 28-4-2006; that a forged will was created by Majid Ikram etc. in order to grab the property belonging to the present petitioners which was given to them by late Justice (R.) Qurban Sadiq Ikram, that if the said will was genuine one then late Justice (R.) Qurban Sadiq Ikram must have made an application to the Model Town Society in this regard which was not done; that civil suit filed by the respondents was fixed for 8-2-2007 when Majid Ikram etc. again attempted to take over the possession of said house on 10-2-2007; that upon this emergency police was called upon and Majid Ikram etc. respondents were taken into custody and a case F.I.R. No. 46 of 2007 under sections 448, 511, P.P.C. was registered against them and possession was handed over back td the present petitioners; that again on 12-2-2007 another attempt was made by the respondents Majid Ikram etc., matter was reported to the police and a case F.I.R. No. 48 of 2007 under sections 506/B, 148, 149 P.P.C. was registered against them and they were arrested by the police; that Majid Ikram one of the respondents is son in law of Ehsan Ullah Waqas MPA of the area belonging to Jamat Islami called the petitioners and Majid Ikram etc. respondents for compromise but with bad intention and ultimately the petitioners were thrown out from their house on 14-2-2007; that thereafter they started living with Professor Saif ul Haq and still they are living there; that a complaint was filed by respondents against said Professor and the petitioners; that civil suit was filed by the respondents on 26-1-2007 in which status-quo was ordered by learned Civil Judge and according to him it is still in existence and on that day possession was with the present petitioners so the possession may be handed over to the petitioners.

2. On the other hand learned counsel for the respondents submits instant writ .petition is not maintainable; that before approaching this Court; petitioners did not avail remedy before the proper forum as required under sections 22-A and 22-B, Cr. P. C. He has relied upon Khizer Hayat and others v. I.G. Punjab etc. PLD 2005 Lah.

470. Learned counsel has referred the application submitted by the petitioners under sections 22-A and 22-B, Cr.P.C. on 17-3-2007, along with that application two applications were also filed by the respondents and all applications were disposed of by learned Addl. Sessions Judge on 13-4-2007 while making direction to S.P. Operation Model Town Lahore to look into the matter at his own level and if substance in the allegation of any of the party is established he will ensure registration of case in accordance with law. Learned counsel has referred the application addressed to C.C.P.O. Lahore, which is at page 30 of the petition and Diary No. 6832, dated 15-2-2007 has been mentioned and also referred the application addressed to C.C.P.O. Lahore which is at page 31 of the petition and Diary No. 226, dated 16-2-2007 has been mentioned aid submits that Diary No. 6832, dated 15-2-2007 on the earlier application is bogus one and this application was never moved to the C.C.P.O. Lahore. Further submits that if Diary No. 226 on the application, dated 16-2-2007 submitted by the petitioners is genuine one then how Diary No.6832, dated 15-2-2007 on the application of petitioners can be made; that in application, dated 15-2-2007 there is no mention, of any occurrence having taken place on 14/15-2-2007; that all these documents have been, fabricated by the petitioners; that the decree, which has been produced today before this Court along with site-plan allegedly signed by late Justice (R.) Qurban Sadiq Ikram is forged one; that the petitioner had applied for membership in Model Town Society along with documents, decree and site-plan is forged one; that on the application submitted to the Society it was replied by the society that there is no jurisdiction to cancel the membership of the petitioners and the respondents if so advised may move to the Registrar Co-Operative Societies; that on 19-4-2007 respondents moved an application to Registrar Co-operative Societies and restraining order was passed by the Registrar which is at page 105 of reply of respondents in which a direction was given to all the parties and respondent Model Town Society was restrained from alienation/disposing of the property till further order; that four suits are pending between. the parties and in ail suits there is a restraining order; that petitioners have a right to file a complaint so the instant writ petition is not maintainable as remedy is available to the petitioners; that order of learned Justice of Peace, dated 19-4-2007 is still in existence and the police has not complied with the same. Adds that order, dated 29-4-2007 passed by Justice of Peace is in accordance with law; that parties are interlocked in civil and criminal litigation and that can be decided after recording the evidence; that this Court has no jurisdiction to entertain this writ petition which is not maintainable in accordance with law.

3. Learned Addl. A.-G. submits that following prayer has been made in this writ petition:-- "It is respectively prayed that direction be issued to respondents Nos.1 to 4 to immediately hand over possession of House No.119-F-III Model Town, Lahore to the petitioners: and also for registration of criminal case against respondents Nos. 6 and 7 and others: It is further prayed that direction be issued to respondents Nos. 1 sto 4 to provide security guards for protection of life of the petitioners from the hands of respondents Nos. 6 and 7."

3. Learned Addl. A.-G. further submits that according to order passed by learned Addl. Sessions Judge in writ petition police has not performed his duty as required under the law; that decree of civil Court, dated 27-6-1995 is still in force and has not been challenged so far, and until same was challenged that remained in field; that according to said decree 2 kanals of land is with the respondents and one kanal of land is with the sons of petitioners; that a dispute arose on 27-1-2007 when present petitioners were dispossessed by the respondents and the status-quo was obtained by respondents on 26-1-2007; that second occurrence took place about the possession of the property on 10-2-2007 and a case F.I.R. No. 46 of 2007 under sections 448, 511, P.P.C. was got registered on the same day against the respondents by petitioner No.1; that offence under section 448, P.P.C, is a house trespass while section 511, P.P.C. is an attempt to commit an offence; that after investigation facts of the case were found to be correct and Majid Ikram respondent was challaned; that finding of the police has not been challenged before higher police officer; that another case F.I.R. No. 48 of 2007 was got registered against the respondents on 12-2-2007 on the statement of petitioner No.1 and in that case. respondents have been challaned; that finding of the police shows that petitioners were in possession of said house and the status-quo was obtained by the respondents; that status-quo means to protect the possession of petitioner; that it was the duty of police to protect the possession of petitioners; that police should also protect life and property of the petitioners as required under the law; that Investigating Officer or the Court in which four civil suits are pending are required. to get the admitted signature of the deceased Justice (R.) Qurban Sadiq Ikram compared with the signature on decree and the site plan attached with the said decree and also the alleged signature on the will which has been allegedly made by him in favour of respondents; lastly submits that prayer of petitioners is regarding possession of the property and life may be protected and an order may be passed in their regard. Learned Addl. A.-G. submitted certified copies of reports under section 173, Cr.P.C. regarding above said two F.I.Rs. lodged by Khalid Ikram petitioner No.1, certificate issued by Model Town Society on the application of Naeem Ahmad S.-I. of Police Station Model Town.

4. I heave heard lengthy arguments from both sides. Nuthsell of above discussion is that Late Justice (R.) Qurban Sadiq Ikram had three kanals of land. Petitioner No.1 is his real brother while respondents Nos.6 and 7 are his real nephews and sons of Abid Ikram. Through a decree, dated 27-6-1995 one kanal land was given in his life time by him to the sons of petitioner No.1 namely Dr. Ayaz Mahmood and Babar Khalid presently they are residing in foreign country while two kanals of land was given by him to his real nephews who are respondents Nos.6 and

7. The decree and site-plan have been produced before this Court as has been mentioned above and the same has not been challenged so far. Now the contention of learned counsel for the respondents Nos.6 and 7 is that on 26-1-2007 respondents had filed civil suit for declaration with permanent injunction in which status-quo order was passed by learned Civil Judge. It is interesting to cote that on the night of 26/27-1-2007, respondents along with others tried to allegedly take over forcible possession of the said house of one kanal being possessed by the petitioners and on hue and cry Mohaladars and neighbourers came there and rescued the petitioners and got restored the possession of petitioners. On 10-2-2007 respondents again made an attempt to dispossess the petitioners while petitioner No.1 called emergency police and a case under sections 448,511, P.P.C. on the same day was got registered by the petitioner No.1 against the respondents and that case during the investigation found to be true and challaned Majid Ikram respondent. Certified copy of report under section 173, Cr.P.C. has been placed on record. Then on 12-2-2007 another case under sections 506,148,149 was got registered by petitioner No.1 against Majid Ikram respondent with the same police station, certified copy of report under section 173, Cr.P.C. has been placed on record. It is well-known technique that in order to take forcible possession of some property after having legal advice such like persons file a suit for declaration and permanent injunction and after getting the status-quo, they forcibly take over the possession. In both the cases got registered by Khalid Ikram as submitted by learned Addl. A.-G. they were found guilty and other papers which have been submitted by the learned Addl. A.-G., I have gone through the certificate issued by Model Town Society on the application submitted by Naeem Ahmad S.-I. on 8-3-2007, according to which Superintendent Record (P) Cooperative Model Town Society (1962) has mentioned as under:--

5. At S. No. 3 one kanal of land is in possession of Dr. Ayaz Mahmood son of petitioner and he is member of Model Town Society which shows that the petitioners sons namely Dr. Ayaz Mahmood and Babar Khalid are in possession of one kanal of land and Dr. Ayaz Mahmood is member of Model Town Society.

6. While arguing the case learned counsel for the respondents was of the view that this writ petition is not maintainable because the petitioners had riot approached the Justice of Peace under sections 22-A and 22-B, Cr.P.C. In my view it is incorrect because petitioner No.1 had moved an application to Justice of Peace, two were moved to CCPO, Lahore and one to ASP Police Station Model Town Lahore and an order was passed by learned Addl. Sessions Judge while disposing of three applications including two applications moved by respondents Nos. 6 and 7, it was directed, that S.P. (Operation) Model Town Lahore should inquire into the matter personally.

7. Petitioners who are retired Professors being an old man .and woman having about 80 years of age have been made rolling stone and are running from pillar to post to get the justice. They are seeking justice from the Court and police and till today they have failed to get the justice. Writ petition is discretionary relief. Court should not fall into .technicalities of law and if Court comes to conclusion that justice has not been done then Court should do justice. In view of facts and circumstances of the case I am of .the considered opinion that the petitioners have been dispossessed from their house. Three attempts have been made by the respondents to dispossess the petitioners from their house. Respondents had got status-quo. Status-quo means that on 26-1-2007 petitioners were in possession of the house and status-quo was in their favour.

8. After having .heard learned counsel for the parties and going through the documents produced before this Court, this writ petition is accepted and. DSP present in Court is directed to get the possession of the house in dispute today at 5-00 p.m. and hind over the same to the petitioners. Police is also duty bound to protect their possession, life and liberty even after handing over the possession to the petitioners. He shall submit his report before this Court through Deputy Registrar (J.) of this Court. Moreover if the petitioner moves an application for registration of the case, police is duty bound to register the case against the respondents. Investigating Officer is directed to .get the admitted signatures of the deceased Justice (R.) Qurban Sadiq Ikram and compare with the signatures on decree, site-plan attached with the said decree, compromise deed and also on the will from Director FIA, Islamabad. H.B.T./K-17/L Order accordingly.