Impartial investigation

2013 YLR 781 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 3, 4 & 5Prevention of illegal possession of property, investigation and procedureImpartial investigationInvestigation conducted without examining complainant's witnessesProprietyComplainant (applicant) and accused (respondent) entered into an agreement for sale of property

Accused made part payment of the total sale consideration and took possession of the property on the basis that complainant handed over possession himself

Complainant alleged that it was agreed upon between the parties that remaining sale consideration would be paid before taking possession of property in question

Complainant filed complaint under sections 3 and 4 of Illegal Dispossession Act, 2005 against the accused, whereafter an inquiry was conducted and report was prepared which stated that possession of property had been given by the complainant himself without taking the remaining sale consideration

Complainant alleged report of Inquiry Officer was not impartial as it had been prepared without examining the witnesses of the complainant and only witnesses of accused were examined

Validity

None of the impartial witnesses were examined

No iota of evidence existed which could establish that possession of property was handed over to the accused by the complainant himself

Fact that complainant allegedly handed over possession of property without realizing the remaining amount, which was a considerable amount, or without even asking for surety of that amount, was not convincing

Perusal of agreement between parties did not reveal any element of handing over possession of property

Accused had not asked for any receipt of handing over/taking over of possession

Accused had to discharge the burden of the fact as to how and in what manner he came in possession of the property, but in circumstances of the case he failed to do so

Revision application was allowed, inquiry report was declared to be improper, therefore, impugned order was set aside and Inquiry Officer was directed to conduct impartial investigation as prescribed under section 5 of the Illegal Dispossession Act, 2005 and investigate the issues which were subject matter of the complaint by recording evidence of impartial witnesses of the area and also witnesses that had been mentioned by the complainant.