ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Revision Application No.S-24 of 2021

Applicants: Khair Muhammad & Others, through Mr. Ahmed Nawaz Shar,

Advocate.

Respondent No.1: Ali Sher, through Mr. Safdar Ali Bhatti, Advocate

SHO P.S Setharja & Others: Through Mr. Zulfiqar Ali Jatoi, Additional PG.

Date of hearing: 03.12.2021.

Date of decision: 03.12.2021.

O R D E R

Zulfiqar Ali Sangi, J: Through instant Cr. Revision Application, the Applicants have assailed the impugned order dated 18.03.2021, passed by learned Additional Session Judge Mirwah, whereby an application under Section 7 of Illegal Dispossession Act, 2005, filed by the Respondent No. 1 was allowed.

2. Briefly the facts leading to this revision are that the Respondent/ complainant filed direct complaint under Sections 3 and 5 of Illegal Dispossession Act-2005 against the applicants and Respondents No.2 and 3 in the court of District Judge Khairpur which was transferred to the court of Learned Additional Sessions Judge Mirwah being Criminal Complaint No.109/2020 stating therein that the Complainant is legal and lawful owner of agricultural land bearing S. Nos: 1250 (1-10), 1251 (1-10) and 893 (1-10) total area 3-30 acres of Deh Wali Dad Lund Taluka Mirwah District Khairpur purchased by him through registered sale deed No:72 dated 27.04.1988, registered in the office of Sub-Registrar Kotdiji, from Qadir Dad son of Fateh Muhammad Wandiar and from the date of purchase the complainant was in its possession and enjoyment. The record of rights in the name of complainant is also maintained by Revenue Department vide entry No.34 of V.F VII-B of Deh Wali Lund and also paying land revenue.

The complainant further stated that on 02.05.2020 at about 08:30 a.m, the complainant alongwith his son Muhammad Saleem and nephew Illahi Bux were working in his field when accused Khair Muhammad and 7 others duly armed came there and asked the complainant to leave the land otherwise they will not spare complainant party and on their refusal the accused jointly pointed their weapons upon complainant party and forcibly dispossess them on the point of weapons from above land and due to fear of weapons the complainant party remained calm and went to their house, it was further alleged that the accused on the point of weapons illegally and unlawfully dispossessed the complainant party and illegally occupied land of complainant. The accused persons with the support and collusion with Shoukat son of Gulsher, Irshad son of Gulsher, Raza Muhammad son of Mahmood, Hameed son of Mahmood, Ummar son of Ishtiaque and Asad son of Gulsher also built Katcha hut in the land to continue and retain their illegal possession over it. The complainant through Nekmards of locality approached accused persons to get vacated the land but all went in vain. The complainant also lodged FIR No.28/2020 against some of the accused.

Lastly, the complainant prayed in the complaint to take the cognizance of offence committed by accused by illegally dispossessing the complainant from his land and prosecute them in accordance with law by awarding exemplary punishment under the law of Illegal Dispossession Act and get restored the possession to the complainant in accordance with law.

The above complaint was filed on 02.11.2020 and court called report from the SHO and the Mukhtiarkar concerned. After the reports cognizance was taken and thereafter the complainant filed application under Section 7 & 8 of Illegal Dispossession Act before learned Additional Sessions Judge Mirwah, praying therein that till disposal of complaint the possession of land in question may be restored to the complainant, which was allowed vide impugned order dated: 18-03-2021.

3. Learned counsel for the applicants, at the very outset, submits that learned Additional Session Judge Mirwah has passed the impugned order without applying its judicial mind and considering the facts of the case as the applicants have committed no offence as alleged; that there is private dispute between the parties; that no charge was framed against the applicants and only cognizance was taken by the Additional Session Judge and the applicants were even not served with NBWs issued against them; that application under section 7 of the said act was to be heard and decided after the charge was framed and some witnesses were ought to be examined which is even clear from the language used in section 7 of the said Act; the order passed by Additional Session judge is illegal, unlawful and against the scheme of law, hence liable to be set-aside. Lastly, he prayed that this revision application may be allowed and the impugned order may be set-aside.

4. Learned Counsel representing the Complainant/Respondent No.1 submitted that the Additional Session Judge has rightly passed the impugned order; that applicants in order to linger on the trial, filed this revision application; that applicants in collusion with each other managed false and fake agreements in respect of land related to the complainant; that there is no bar on deciding application under section 7 of the said Act; that while taking cognizance learned Additional Session Judge has also observed that applicants have dispossessed the complainant; that there is no any requirement of law that application under section 7 of the said Act is to be filed after the charge is framed. Lastly, he prayed that this revision may be dismissed.

5. Learned APG has not supported the impugned order and while adopting the arguments of learned counsel for the applicants further submitted that the trail court has committed illegality while passing the order on an application under section 7 of the Illegal Dispossession Act, 2005, before framing the charge and recording evidence.

6. I have heard learned Counsel for the Applicant, learned Counsel representing the Respondent No.1/Complainant as well as learned APG and have gone through the material available on record.

7. The object for which the Illegal Dispossession Act, 2005 was promulgated is to stop and prevent the forced dispossession of owner or occupier of the immovable property by the persons having antecedents in land grabbing or in committing fraud. The procedure under the said Act provides filing of complaint under section 3 of the Act where after the trial court has to record the statements of complainant and witnesses so also to call report from the police officials regarding the dispute pending between the parties over the property so that such material could be tentatively looked into for the purpose of taking cognizance and summoning the accused persons as required by section 4 of the Act ibid. However, under section 5 of the Act ibid the procedure for the purpose of investigation is provided, while under section 6 of the Act, the court can act to attach the property until the final decision of the case, if it is satisfied that none of the parties are/were in possession of the property immediately before commencement of the offence and under section 7 of the Act ibid the court has power to grant interim relief.

8. The main point for the consideration before this court is that whether section 7 of the ibid Act is applicable after taking cognizance and before framing the charge or after framing of the charge and recording evidence. For ready reference section 7 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) …………………

9. The perusal of section 7 of the Act manifests that the grant of interim relief is subject to the condition "during trial". The expression during trial has been interpreted by the Hon'ble Supreme Court of Pakistan in a case of Haq Nawaz and others (2000 SCMR 785), wherein it was held as under:-

"From a review of above provisions of the court, it is quite clear to us that taking of cognizance of the case by the court is not synonymous with the commencement of trial in a case. Taking cognizance of case by the court is the first step which may or may not culminate into the trial of the accused. The trial in a criminal case, therefore, does not commence with the taking of the cognizance of the case by the court."

10. It is observed that for taking cognizance of the offence and investigation under the provision of Illegal Dispossession Act, 2005 a separate provisions are provided under section 4 and 5 of the Illegal Dispossession Act, 2005 which reads as under:-

4. Cognizance of offence.- (1) Notwithstanding anything contained in the Code or any law for the time being in force, the 'contravention of section 3 shall be triable by the Court of Session on a complaint.

(2) The offence under this Act shall be non-cognizable.

(3) The Court at any stage of the proceedings may direct the police to arrest the accused.

5. Investigation and procedure.- (1) 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 subsection.

(2) On taking cognizance 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 for 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.

From perusal of the above provisions it is clear that in respect of the “taking cognizance” and “investigation”, the Act has its own provisions. However, for the trial and other proceedings for which there is no provision in the Act ibid then by virtue of section 9 of the Act, Criminal Procedure Code, 1898 is applicable which provides the procedure for framing of the charge and the said procedure for framing the charge is governed by sections 265(c) and 265(d) of the Criminal Procedure Code, 1898. Therefore, it is mandatory upon the trial court to first comply with the provisions of sections 265(c) and 265(d), Cr.P.C. before commencing the trial. It is further observed that before complying section 265 (d), Cr.P.C, the provision of section 265(c), Cr.P.C, is to be complied with, wherein the accused is entitled to be supplied the relevant documents of the complaint in order to enable him to know the exact nature of allegations before he is sent-up to stand the trial. The purpose whereof is to afford the accused sufficient time to study the allegations against him and to prepare his defence if any. In clause (b) of subsection (2), it is further provided that the copies of the complaint or any other document which has been filed by the complainant shall be supplied to the accused free of cost not later than seven days before the commencement of the trial. The supply of the relevant copies of the complaint to the accused before seven days of the commencement of the trial has a direct connotation to the framing of charge, which means that the trial of an accused would not start unless the relevant documents are supplied to him in terms of section 265(c), Cr.P.C. which shall then lead to the framing of charge under section 265(d), Cr.P.C.

11. It is further observed that under section 265(d), Cr.P.C, the court, after perusing the police report, the complaint and all other documents and statements filed by the prosecution, is of the opinion regarding availability of sufficient grounds to proceed with the trial, it shall frame a charge in writing against the accused. The study of above provisions of law shows that the trial would not start until a period of seven days after supplying the relevant copies to the accused in terms of clause (b) to subsection (2) of section 265, Cr.P.C. is expired and charge is framed, which can be considered as a first step towards the commencement of trial. After the first step as discussed above a second step for recording evidence starts and the condition provided in section 7 of the Illegal Dispossession Act "during trial" come in to the force.

12. It is well settled principle of interpretation law that “If the words of the Statute are themselves clear and unambiguous, no more is necessary to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of legislature”, as held in the case of Mumtaz Hussain v. Dr. Nasir Khan and others (2010 SCMR 1254).

Honourable Supreme Court in another case of Ghulam Haider and others v. Murad through Legal Representatives and others (PLD 2012 SC 501), has held as under:-

“Where the plain language of a statute admits of no other interpretation then the intention of the legislature conveyed through such language is to be given its full effect.”

13. Admittedly in the present case charge has not been framed against the applicants, even the NBWs issued against them were not served upon some of the applicants as has been reflected from the impugned order, the application under section 7 of the Act was allowed. Relevant para of the impugned order is re-produced as under:-

“After preliminary inquiry cognizance was taken by this court and present complaint is on regular file is pending for service/ NBWs against some of the accused persons”.

Perusal of the impugned order as re-produced above reflects that the learned trial court has not attended itself to the condition precedent appearing in section 7 of the Act 2005 before passing the impugned order, which is therefore, without lawful authority and not sustainable in the eyes of law.

14. For what has been discussed above, the impugned order dated: 18-03-2021 passed by the Additional Session Judge Mirwah is set-aside and all actions arising of impugned order are recalled with the result, the application under section 7 of the Act, 2005 shall be deemed to be pending before the trial court, which shall be decided afresh after framing the charge and affording the right of hearing to the parties.

15. These are the reasons of my short order dated: 03-12-2021 which reads as under:-

“Heard learned counsel for the parties as well as learned Additional Prosecutor General, for the reasons to be recorded later on, impugned order dated: 18-03-2021 is hereby set-aside. All actions, proceedings, arising out of such order are hereby recalled”.

J U D G E