P L D 2008 Peshawar 49 (PLP)

SYED YAHYA ZAHID GILANI, J.

This criminal revision petition has been directed against the order of Mrs. Sofia Waqar Khattak, Additional Sessions Judge-V, D.I. Khan dated 7-6-2007, whereby she has dismissed the complaint of petitioner Sahib Khan, moved under Illegal Dispossession Act, 2005 (Act XI of 2005), on the grounds of non-maintainability.

2. Petitioner appeared in person who was personally heard because he failed to produce his counsel due to strike. Record has been perused.

3. It is the case of complainant that he has been illegally dispossessed by the respondents from land approximately 10 to 12 kanals, in Khasra No.2815 and 2954, situated in Khata No.2815 Khatoni No.663, in village and Tehsil Kulachi, District D.I. Khan, as per Jamabandi for the year 2001-2002. The means of dispossession was ploughing through tractor.

4. The trial Court directed on 8-2-2007 for inquiry/investigation through concerned S.H.O. in terms of section 5 of the Act (ibid). He submitted, report dated 25-2-2007 on the basis of which the respondents accused were summoned for 8-3-2007. The respondents accused raised objection on the maintainability of complaint on which parties were heard and consequently the impugned order was passed declaring the complaint not maintainable and dismissal of complaint.

5. The grounds of revision petition contain objection that once the accused respondents were summoned under section 204 of Cr. P. C., the trial Court had no jurisdiction to dismiss the complaint under section 203, Cr.P.C.

6. I have gone through the impugned order wherein it is not mentioned that the complaint has been dismissed under section 203, Cr. P. C. However, indeed, it is a reasonable question that under what law the complaint was dismissed?

7. In this behalf, I want to refer to section 9 of the Illegal Dispossession Act which clearly indicates that unless otherwise provided in the Act (ibid), the provision of the Code of Criminal Procedure shall apply to the proceedings under the Act. So, the provision of Criminal Procedure Code are though applicable but they are subject to the general scheme of the Act, which is a special law, also introducing some special modes of procedure.

8. Thereafter, I shall also refer to section 5 of the Act. The procedure in section 5(1) of the Act is special procedure which empowers the Court to get conducted the special investigation, within the stipulated period of fifteen days. After receipt of the investigation report, the Court shall obviously apply its mind to further proceed with the matter under section 5(2) of the Act or not. If this application of mind is excluded from the powers of trial Court, the purpose of investigation under section 5(1) of the Act would become meaningless and the process under section 5(1) of the Act would become a mechanical exercise directly conflicting with fundamental object of the Act, i.e. speedy disposal of disputes falling in its ambit. It being so, and holding that the trial Court has powers to apply mind after receipt of investigation report under section 5(1) of the Act to further proceed with the trial under section 5(2) of the Act, the consequential power of the Court also flows out, either to hold the complaint maintainable or not, which shall have to be deemed vested in the trial Court under the Act.

9. Again, another question arises that whether the aforesaid application of mind, under section 5(1) of the Act, to further take cognizance of the trial under section 5(2) of the Act, is permissible after procuring attendance of the accused, as it was done in the present case? Answer to this question is manifestly available in section 4(3) of the Act which empowers a trial Court to direct arrest and production of an accused at any stage of the proceedings. The words "at any stage of the proceedings" are wide enough to cover the present case wherein the attendance of respondents accused was procured before taking cognizance of the trial under section 5(2) of the Act.

10. I would like to opine at this juncture that procurement of attendance of accused for hearing before proceeding with the trial under section 5(2) of the Act would be more appropriate as it would honour the golden principle of law "Audi alteram partem". It would provide a very valuable opportunity to accused to succinctly place his case before the trial Court at the outset to make the Court to understand extraneous and intrinsic implications of the investigation report at the time of applying its mind under section 5(1) of the Act to decide whether further progress in the complaint is necessary or not. In this manner the Court would more safely and appropriately decide the important issue of proceeding further with the trial or not. Dismissal of not maintainable complaints at this stage shall save precious Court time, and shall also save the parties from unnecessary financial expenditure.

11. I, therefore, hold that procurement of attendance of the accused in this case is covered by section 4(3) of the Act and not in violation of law. Rather it was strictly in accordance with the scheme and objective of the Act. The ground B of the petitioner in the revision petition is thus repelled.

12. Now coming to the facts of the case, it is quite clear that as per investigation report of police prepared with the assistance of Halqa Patwari, there were trees of Keekar and crop of Usun standing on 27 Kanals 17 Marlas in Khasra No.2954 and land measuring 14 Kanals 7 Marlas in Khasra No. 2815, that is the total land in these two Khasra numbers. If ploughing was done, that was in another Khasra number. I, therefore, agree with the findings of .the learned trial Court that no offence as per allegations in the complaint appears to have been committed to proceed further for trial in the complaint under decision.

13. Consequently, no force is seen in this revision petition which is dismissed in limine. H.B.T./6/P?????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.