Complaint Procedure under Illegal Dispossession Act 2005

Complaint Procedure under Illegal Dispossession Act 2005 Case Laws Criminal Law Illegal Dispossession Knowledge - Criminal Law Lahore High Court Litigation & Arbitration Solutions - Criminal Law Special Law Mr. Justice Farrukh Gulzar Awan in his judgment has decided the issue regarding complaint procedure under Illegal Dispossession Act 2005 in Writ Petition No. 6393 of 2009.

1. Through the above captioned constitutional petition under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973, petitioners Taimoor Ahmad and Muhammad Altaf have called in question the legality of order dated 3.7.2009 passed by the learned Additional Sessions Judge, Mian Channu in private complaint titled “Saad Ahmad Khan vs. Taimoor Ahmad & 9 others” filed by respondent No.2 under Sections 3, 4, 7 & 8 of The Illegal Dispossession (Act XI of 2005) whereby after inquiry under Section 202 Cr.P.C., the petitioners and respondents No.3 to 10 were summoned to face the trial of aforesaid private complaint.

2. Succinctly, the facts of the case are that respondent No.2 filed the aforementioned private complaint against the petitioners and respondents No.3 to 10 alleging therein that on 27.4.2009 at about 4 O’clock, the petitioners along with respondents No.3 to 6 while armed with fire arms, forcibly dispossessed respondent No.2 from his agricultural land measuring 79-Kanals, 15-Marlas situated in square No.53, Qilla No.1 to 10 and square No.54 Qilla No.1, in Chak No.2/8-AR, Tehsil Mian Channu, District Khanewal. It was further alleged that the aforesaid persons in connivance with respondents No.7 to 10 got prepared false and forged documents in respect of the property in dispute in order to deprive respondent No.2 from his lawful property.

3. Learned trial Court, after recording cursory evidence of respondent No.2, referred the matter to the learned Area Magistrate for inquiry under Section 202 Cr.P.C. and also to visit the spot through his subordinate, who after recording the cursory statements of witnesses, deputed his Naib Court for spot inspection. The Naib Court visited the spot, recorded statements of witnesses, obtained affidavits, prepared map of the land and submitted his report and the learned Area Magistrate while relying on the said report, forwarded complaint under Section 202 Cr.P.C. being prima facie made out against the petitioners and respondents No.3 to 10 to the learned trial Court, who on receiving said report, summoned the petitioners as well as respondents No.3 to 10 to face the trial under the Act ibid in the terms of impugned order dated 3.7.2009. Hence, this writ petition.

4. Learned counsel for the petitioners has contended that dispute between the parties was essentially of civil nature and both the parties had filed civil suits against each other prior to the aforementioned alleged incident; that the learned Civil Court had already issued injunctive order in respect of the property in dispute; that the procedure provided under Section 202 Cr.P.C. would not be applicable to the proceedings initiated under this Act being barred by Section 9 of the Act ibid, which can only be applicable when no specific provision is provided under the Act having overriding effect and as such the impugned order is liable to be set aside.

5. On the other hand learned counsel for respondent No.2 assisted by the learned Assistant Advocate General has vehemently opposed this petition.

6. Arguments pro and contra have been heard. Available record perused.

7. Upon the aforesaid complaint of respondent No.2, learned trial Court directed the learned Area Magistrate for holding an inquiry under Section 202 Cr.P.C. after spot inspection. Illegal Dispossession Act, 2005 is a Special Law having overriding effect in the terms of Section 4 and has been promulgated to rid the people from menace of Qabza groups and land grabbers and also to protect the right of owners and lawful occupants as well. The trial of an accused under the Illegal Dispossession Act, 2005 cannot be equated with the trial in a complaint under Section 190 Cr.P.C.

8. Under this Act cognizance of offence under Section 4 can be equated with Section 154 Cr.P.C. and the provisions of Section 5(1) of the Act ibid can be equated with report under Section 173 Cr.P.C. Reliance in this respect is placed on the landmark judgment of Hon’ble Supreme Court of Pakistan reported as “Mst. Inayat Khatoon and others versus Muhammad Riaz and others (2012 SCMR 229).

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