P L D 2011 Lahore 340 (PLP)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this constitutional petition, the petitioner has assailed order dated 7-6-2010 passed by learned Additional Sessions Judge, Mian Channu District Khanewal.

2. Briefly stated the facts of case are, respondent No.2 filed a private complaint against the petitioner and respondents Nos.5 to 8 under section 3 of Illegal Dispossession Act, 2005 (hereinafter referred to as Act of 2005). The allegation as per complaint is that petitioner and respondents Nos.5 to 8 by demolishing southern wall of complainant's house entered in, harassed and dispossessed her from her property and also damaged household articles amounting to Rs.150,

000. Respondent No.1 recorded the statements of complainant and her witnesses and called report from S.H.O., on 3-6-2010 issued bailable warrants of arrest of the petitioner and respondents Nos.5 to 8 in the sum of Rs.30,000 each and on the same day respondent No.1 under section 7 of the Act of 2005 directed the S.H.O. concerned to restore the possession of house to petitioner.

3. Learned counsel for petitioner submits that under section 7 of the Act of 2005, without framing the charge, no order can be passed for restoration of the possession. He further submits that petitioner is the real owner of house in dispute and as such the allegation of illegal dispossession of respondent No.2 is without any substance. A suit for permanent injunction is pending disposal between the parties before learned Civil Judge, Mian Channu, District Khanewal, admittedly, before the institution of complaint in hand. Respondent No.3 has already registered an F.I.R. No.169 of 2010 for the said alleged incident against the petitioner and others under sections 448/380/427, P.P.C. at Police Station Saddar Mian Channu and as such the private complaint was not maintainable. The impugned order has been passed without providing opportunity to refute the allegation against the petitioner.

4. Learned counsel for the respondents submits that respondent No.1 after recording the statement of complainant as well as her witnesses and examining the report of S.H.O concerned has rightly passed the impugned order. He further submits that there is no bar under section 7 of the Act of 2005 for passing the impugned order as the said order can be passed at any time.

5. Heard and record perused.

6. The only point requires for resolution of dispute between the parties is "whether under section 7 of the Act of 2005, the incumbent court can pass an interim order for restoration of possession", as question of maintainability of complaint is yet to be decided by the learned trial Court. For better appreciation of section 7 of Illegal Dispossession Act, 2005 is re-produced as under:- "

7. Eviction and mode of recovery as an interim relief.

(1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession. (2) . (3) (4) (5) (6) ..

7. The perusal of section 7 ibid shows that word used is "during trial". The word "during trial" is of important significance.

8. Now it is a settled law that purpose for promulgation of the Act of 2005 is to curb the forcible dispossession of owner/occupier of the immovable property by land grabbers or fraudulent persons. On receiving the complaint under section 3 of the Act of 2005, the learned trial Court has to record the statements of complainant and her witnesses and to call report from S.H.O and after tentatively assessing the commission of offence has to summon the accused persons. Under section 4 of the Act of 2005, the court is empowered to take cognizance of the complaint under section 5 of the Act of 2005 the investigation procedure is provided under section 6 of the Act of 2005 the court has the power to attach the property in dispute and under section 7 of the Act of 2005, the court can grant interim relief.

9. The perusal of section 6 of the Act of 2005 shows that court can pass the attachment order of the property in dispute, the construction of said Section shows that:- "If the court is satisfied that none of the persons is in possession immediately before the commission of the offence, the court may attach the property until final decision of the case."

10. The powers of the court under section 6 of the Act of 2005 is for attachment of property and invoking the said provision, means if the court after recording the statement of complainant and submission of report by the S.H.O is satisfied that it is in the interest of the parties that property in dispute should be attached for preserving it, the court can pass the order of attachment even on the first date of hearing if the Court considers that'' property in dispute will be destroyed, alienated or otherwise. The purpose of attachment of property is only to presume the property and not the restoration of same to claimant, hence this order can be passed even on the first date of hearing. But under section 7 of the Act of 2005 there is a restriction imposed by law. In this provision of law the word used is "during trial"; which shows that the commencement of the trial is the condition precedent for passing the order under this provision of law. It is an established principle of law that trial commences after framing the charge.

11. Framing of charge is regulated by sections 265-C and 265-D of Code of Criminal Procedure, 1898. It is also an admitted fact that Code of Criminal Procedure is applicable before the trial Court acting under the Act of 2005. The compliance of section 265-C of Cr.P.C. is mandatory before setting the case on trial. Under law, accused is entitled of right to get copies of statement of all witnesses recorded under section 161, Cr.P.C. Under section 265-D the court has to frame the charge, the said section is reproduced as under:- "265-D. When charge is to be framed.

If after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused."

12. The conjunctive study of sections 265-C and 265-D, Cr.P.C. shows that in all cases instituted on police report or under a complaint, the court under section 265-C is bound to supply free of cost, to accused, copies of F.I.R., police report, statements of witnesses recorded under sections 161 and 164, Cr.P.C. Under section 265-C, Cr.P.C., the court has to provide "Copies are to be supplied not later than seven days before the commencement of the trial". The plain language of this section shows that the trial in law does not commence until after the expiry of seven days from the supply of copies. Under section 265-D, Cr.P.C. the court has to form an opinion on the basis of police report and the complaint and all other annexed documents or statements filed by the prosecution as the case may be, to the existence of ground of proceeding trial. Object of framing the charge in the case is to enable the accused to know the precise acquisition against him which he is required to meet before the evidence to be adduced by the prosecution against him.

13. Under section 7 of the Act of 2005 the word used is "during trial". This shows that initiation of trial is condition precedent for taking cognizance under said section.

14. In the present case admittedly charge has not been framed and the learned trial Court only after perusing the statements recorded by the complainant and her witnesses along with report of S.H.O, passed the impugned order for restoration of possession. The impugned order is thus, without lawful authority and could not sustain in the eye of law.

15. The upshot of the above said discussion is that the impugned order is set aside and the case is remanded to the learned trial Court for deciding the same in accordance with law. However, the learned trial Court after framing the charge and hearing the petitioner/respondent if comes to the conclusion that it is necessary to restore the possession to respondent No.2 in terms of section 7 ibid, it may pass the same in accordance with law.

16. With these observations, this petition is allowed. N.H.Q./R-11/L Case remanded.