Order Sheet

IN THE HIGH COURT OF SINDH,

BENCH AT SUKKUR

 

Cr. Revision No. S – 64 of 2021

 

 

Date                                 Order with Signature of Hon’ble Judge

For hearing of case

1.     For orders on office objection at flag ‘A’

2.     For hearing of main case

3.     For hearing of MA No.3672/2021

 

13.09.2021

          Mr. Zulfiqar Ali Arain Advocate for the Applicant

Mr. Ghulam Yaseen Waso Advocate for private respondent

Mr. Zulfiqar Ali Jatoi, Additional PG for the State

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AMJAD ALI SAHITO, J;-  Through instant Criminal Revision Application, the applicants/accused has impugned the order dated 25.06.2021 passed by learned Additional 3rd. Additional Sessions Judge, Mirpur Mathelo, whereby the direct complaint filed by the applicant under Sections 3(2) of the Illegal Dispossession Act, 2005 was brought on record.

2.       Per learned counsel for the applicant/accused that the procedure provided under Illegal Dispossession Act, 2005, the Section 5 of the Illegal Dispossession Act, 2005 provides that upon a complaint court may direct the SHO of Police Station to investigate and after completing the investigation forward the same within 15 days to the Court. He further submits that no such statement of the applicant/accused was recorded by the Investigating Officer nor he was called, but in summary manner he has submitted his report. He lastly prayed that the impugned order may be set-aside and with direction to the Investigating Officer of the case to record the statement of the applicant/accused and collect the evidence in accordance with law and then submit such report to the trial Court.

3.       On the other hand, learned counsel appearing for the private respondent and learned Additional PG for the State prayed for dismissal of instant revision application by contending that report has already been furnished by the SHO/Investigating Officer and the learned trial Court has passed a speaking order, which does not call for any interference by this Court.

4.       I have heard the learned counsel for the parties and gone through the material available on record. It would be conducive to reproduce Section 5 of the Illegal Dispossession Act, 2005, as under;-

 

5. Investigation and procedure.---Upon a complaint the Court may direct the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court:

Provided the Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this sub-section[.]

 

2[Provided further that whenever a local inquiry is necessary for the purpose of this Act, the Court may direct a Magistrate or a revenue officer in the district to make inquiry and submit report within a period as may be specified by the Court. The report of the Magistrate or revenue officer, as the case may be, shall be construed as evidence in the case.]

(2) On taking cognizable of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay sufficient reasons shall be recorded.

(3) The Court shall not adjourn the trial of any purpose unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days.

3[(4) On conclusion of the trial, if the complain is found to be false, frivolous or vexatious, the Court may award compensatory cost to the person complained against which may extend to five hundred thousand rupees.]

 

5.       Further under Section 4(I) Cr.P.C, the role of Investigating Officer has been defined, which provides that the investigation includes all the proceedings under this Code for the collection of evidence conducted by the police-officer or by any person (other than a Magistrate) who is authorized by a magistrate in this behalf.

6.       Admittedly, neither the statement of the applicant/complainant is available on record nor the police officer has collected the material during investigation. As per claim of the learned counsel for the applicant/accused that both the parties are co‑sharers in the property being uterine brothers, therefore, sufficient material is available with the applicant/accused that they are co-sharers in the property.

7.       In view of the above, the instant Criminal Revision Application is allowed and the impugned order dated 25.06.2021 passed by learned 3rd. Additional Sessions Judge, Mirpur Mathelo is set-aside. However, the learned trial Court is directed to direct the Investigating Officer to record the statement of the applicant/accused and collect the material available with him and submit his report within 15 days and after going through the entire material available on record and after providing an opportunity of hearing to the parties, pass afresh speaking order.

 

Judge

 

ARBROHI