2015 P Cr. L J 907
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD QASIM ---Petitioner
versus
AHSAN RAZA and 2 others ---Respondents
Criminal Revision No. 24 of 2014, decided on 19th March, 2015.
Illegal Dispossession Act (XI of 2005) ---
----S. 5---Criminal Procedure Code (V of 1898), S. 265 -K---Illegal dispossession ---Complaint,
withdrawal of ---Petitioner was a complainant in similar complaint which was withdrawn and
Trial Court declined to implead petitioner as complainant ---Validity ---Complaint neither
contained names of witnesses nor gist of evidence ---No assertion on the part of petitioner was
available on record that despite providing necessary details Trial Court failed to summon the
persons intended to be produced as witn esses ---Trial Court might have recorded findings in
exercise of powers available under S. 265 -K, Cr.P.C. instead of allowing complaint to be
withdrawn ---Order of acquittal of accused was to be recorded in each case ---Trial Court in the
judgment, discussed the material available before it and dismissed complaint for want of merit ---
Trial Court, though had not skillfully wrote the order but had arrived to a correct decision only
with an error as it required to record an order of acquittal in favour of accused on dismissal of
complaint ---High Court upheld the order passed by Trial Court as the same was just and proper
and complaint was dismissed for want of merit, while accused was acquitted of the charge ---
High Court directed Provincial Government to look into the affairs of education institution and to
keep it on right path to save the children, who were real affectees ---Revision was disposed of
accordingly.
Habib Tahir for Petitioner.
Amir Hamza, Deputy Prosecutor -General for Respondents.
Date of he aring: 4th December, 2014.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioner Muhammad Qasim is before this
court to question order dated 31st December, 2013 of Additional Sessions Judge -VI, Quetta,
whereby the trial Court allowed the complainant Muhammad Naqi to withdraw his complaint,
and declined the request of the petitioner to array him as complainant in place of the complainant
Muhammad Naqi.
2. The facts collected from the papers available in the case file that one Muhammad Naqi,
(present respondent No. 2), approached the court to report his dispossession from the premises
by filing a complaint under section 4 the Illegal Dispossession Act, 2005 (hereinafter referred
"The Act 2005") against Ahsan Raza (present respondent No. 1). The complai nt was with the
assertions that the respondent No. 1 (Ahsan Raza) forcibly dispossessed him and his family from
the questioned premises on 17th February, 2009. The trial Court i.e. Additional Sessions Judge -
II, Quetta took cognizance of the matter, but bef ore framing of charge the present petitioner
entered into the picture with a request to include him in the list of the complainant. The trial
court vide order dated 22nd July, 2009 though declined the request of the petitioner (Muhammad
Qasim), but allowed the complainant Muhammad Naqi to withdraw his complaint, with an order
of discharge of the accused. This order was questioned before this court by Muhammad Qasim
(present petitioner) and vide judgment dated 8th January, 2010 this court held that simplicit or
withdrawal of the complaint could not be allowed, rather the order must state the grounds on
which it was allowed. Consequent thereto the order dated 22nd July, 2009 was set aside and the
case was remanded to the trial court with the direction to procee d with the matter in accordance
with the relevant law. Further, the applications pertained to addition of Muhammad Qasim as
party to the proceedings, and freezing of surplus accounts were deemed to be pending, and to be
decided afresh.
3. This order was assailed before honourable Supreme Court, who without going into merit
of the case vide order dated 2nd February, 2010 directed the trial Court to decide the matter on
hearing of the parties. The trial Court in compliance heard the parties, and vide order dated 26th
April, 2010 accepted the request on part of the complainant to withdraw his complaint, but
declined the request of Muhammad Qasim (present petitioner) to include him in the proceedings.
The grievance subsisted, and Muhammad Qasim (present petiti oner) was before this court, but
the matter was again remanded to the trial Court vide order dated 26th August, 2013 with the
direction to expedite the matter and decide it strictly in accordance with law. The trial court in
compliance thereof vide order d ated 31st December, 2013 arrived to the decision that the
applicant (intervener) failed to make out a ease to join him as party to the proceedings. Further,
the statement of the counsel for the complainant that the complainant did not intend to proceed
with the complaint against respondent No. 1, and also unable to produce any evidence in support
of his case was considered along with the observation that the dispute between the parties is of
civil nature, thus. the complaint was ordered to be dismissed. The grievance still subsists, hence
the instant petition.
4. The petitioner Muhammad Qasim questioned the impugned order while contending that
the trial court wrongly observed that the dispute pertained to ownership of the property, rather
the question was of illegal dispossession, which was to be dealt with in accordance with law.
Further, once the cognizance of the case was taken under section 5(2) of the Act, 2005; then the
proceedings were to be held with a decision on merit as provided by the law. It wa s contended
that the complaint, due to non availability of Muhammad Naqi (the complainant), would not
failed, as he (petitioner) being the owner, and for himself and on behalf of Muhammad Ayub, the
administrator of the school, was before the court to pursu e the case. Thus the trial court was
under obligation to allow him (petitioner) to proceed with the matter.
5. The learned counsel for the petitioner argued his case at length. He mainly stressed for an
order to get the complaints, one filed by the petit ioner and the other filed by Muhammad Naqi,
consolidated. It was with the assertion that the matter in issue in both the complaints were the
same and till date eleven witnesses were produced and their statements were recorded, while
several documents were made part of the record in the other complaint. A common decision
describe to be the basic requirement for final adjudication of the matter. In addition the
admission made in the civil suit filed by the respondent for possession was referred to assert that
it also established the right of the petitioner.
6. The learned Deputy Prosecutor -General (DPG) was only of the view that the dispute
between the parties was of civil nature, therefore, to be dealt with under the civil law. Further,
inclusion of a stran ger in a criminal case was objected as not permitted by the law.
7. The learned counsel for respondent No. 1 submitted his arguments in writing coupled
with a number of documents, mostly consisted of orders and decisions of this court, along with
copy of the complaint filed by the present petitioner and Muhammad Ayub against several
persons including respondent No. 1, which is still subjudice.
8. Though the complaint filed by Muhammad Naqi pertained to the residential flats
constructed over the building wherein a school, described with the name of Quetta Public High
School and College, Shah Zaman Road, Joint Road, Quetta, (The School), was existed. Not only
the business of the School, but the building and the land underneath was matter in dispute
between the parties. The petitioner described the property as joint holding of Muhammad Nazim
(father of Muhammad Naqi), Muhammad Ayub, Muhammad Qasim and Muhammad Ibrahim
(uncles of Muhammad Naqi). The possession described to be with Muhammad Ayub in his
capacit y as of administrator of the School. Several documents were annexed with the petition to
establish the respective assertions. The proceedings on the complaint were not remained
confined to the residential flats; rather the School, its business and the buil ding with the land
underneath was the real controversy between the parties. In view of the nature of the case an
interim order for attachment of the property with freezing of the accounts was made, in the first
round of litigation, by the trial Court, but it was never implemented in its true sense. It is third
time the petitioner is before this court with same assertions and for the same relief. In view of the
narrated facts not only an order to meet with the situation, but also to settle the dispute once a nd
for all is required.
9. It is to be noted that neither the complainant Muhammad Naqi, nor Ahsan Raza
approached this court against any order of the trial Court; rather it was only Muhammad Qasim
(the present petitioner), who questioned the orders befo re this court being aggrieved with the
findings of the trial Court. The fact that Muhammad Qasim was not a party to the complaint
before the trial Court, rather his status was of an applicant, who was before the court with a
request to include him as a par ty to the proceedings. The request to the effect was declined by the
trial Court thrice???????. The learned counsel for the petitioner was asked to describe his status
and the relevant provision of law which allowed a third person to become a party to a
proceeding, criminal in nature, that too as of complainant. There was no reply, rather the learned
Counsel was of the view that as the property in dispute consisted of a school building, and
residential flats, also owned by the School and the management of t he School was also matter in
issue. Further, the School as a whole jointly owned by the petitioner and Muhammad Ayub,
therefore, in their status as of lawful owner necessitated their inclusion in list of the
complainants. He further stated that the other c omplaint in respect of the same premises had
already been filed by the petitioner (Muhammad Qasim) and Muhammad Ayub, against several
persons including the present respondent No. 1, thus are to be dealt with jointly.
10. Copy of the referred complaint av ailable in the case file described filing of the complaint
in continuity with the complaint initially filed by Muhammad Naqi. It was hard to understand
that when the petitioner (Muhammad Qasim) had already filed a complaint with, same object,
still subjudi ce, why he was pressing hard to become party in the first complaint filed by
Muhammad Naqi instead of pursuing with his own case. Further, no law was referred to support
his respective contention. The request was rightly declined by the trial Court.
11. As far dismissal of the complaint is concerned, ??????? noted in the impugned judgment
that the charge was dated on 6th June, 2009, and since then till final decision of the matter not a
single witness appeared in support of the complaint. Section 265 -C Cr iminal Procedure Code
(Cr.P.C.) requires that a complaint filed in writing must state the substance of accusation, names
of witnesses and the gist of evidence, which the complainant likely to adduce at the trial. While
section 265 -F, Cr.P.C. requires a cou rt to ascertain the names of the persons acquainted with the
facts of the case and able to give evidence, and shall summon such persons to give evidence
before it. The complaint, copy whereof, available in the case file, neither contained the names of
witnesses, nor the gist of evidence. Further, there was also no assertion on part of the petitioner
that despite providing the necessary details the trial Court failed to summon the persons intended
to be produced as witnesses. In view of the narrated facts th e trial court might have recorded
findings in exercise of powers available under section 265 -K, Cr.P.C. instead of allowing the
complaint to be withdrawn. Further, in each case an order of acquittal of the accused was to be
recorded. The trial court in the impugned judgment discussed the material available before it and
dismissed the complaint for want of merit. Though the trial court not skillfully write the order,
but fortunately arrived to a correct decision, only with an error as it required to record i n order of
acquittal in favour of the accused Ahsan Raza on dismissal of the complaint.
12. In view of the above discussion the order of the trial Court is just and proper in the given
state of affairs, therefore, it is hereby upheld with the rectificati on that the complaint is dismissed
for want of merit, while the accused Ahsan Raza son of Muhammad Ibrahim is acquitted of the
charge.
13. Before parting with the judgment it need to mention with concern that the parties i.e.
Muhammad Qasim and Ahsan Raz a along with number of persons are engaged in litigation,
criminal in nature, and pressing hard to get an order of conviction against each other. The basis
of the dispute between the parties is in fact a property where a school in the name of Quetta
Public High School and College, Shah Zaman Road, Joint Road, Quetta is in existence and in
operation. The parties along with several other persons not only fighting for the landed property
and the superstructure existed thereon, but also for the management of th e School only for
financial gains. It is unfortunate that none of them care about the future of the educational
institution, established decades ago, nor about the students getting education therein. They all are
fighting for their personal gains. And to a chieve the purpose the conduct adopted by them not
only created an apprehension of breach of peace, rather they have already breached the peace, as
several cases, criminal in nature, had already been filed against each other and still subjudice.
The order sheets maintained by the trial Court also noted the conduct of the parties as highly
aggressive and hostile against each other. Due to the conduct adopted by the all concerned,
including the parties, very unfortunate situation has arisen and future of numb er of children are at
stake, and the educational institution is at the verge of destruction. It is third round that this
matter is before this court, and it is noted with pain that the parties are still engaged in criminal
litigation, while none of them ma de any effort to get declare a clear title by a court of competent
jurisdiction, in his favour to place an end to the dispute existed between them for a number of
years.
14. The described circumstances necessitated an exercise of inherent powers by this court to
secure the ends of justice and to place to an end the unnecessary litigation. It is, therefore,
ordered that the property consisting of the land and buildings, residential and of the School i.e.
Quetta Public School and College, are hereby attache d. The Government of Balochistan is
directed to take possession of the School and the annexed buildings. Further, directed not to
permit either of the parties or any other person to enter the premises or interfere in running and
management of the School. T he Government is further directed to constitute a Board, to look
after the administrative and financial affairs of the School. For the purpose the Board shall
maintain the accounts, protect, preserve and improve the School, and shall take all the necessary
steps for its better administration. It will not be out of context to mention that on the basis of the
material available in the case file none of the parties satisfied this court that who was in actual
possession of the property, matter in issue, thus th e property shall remain attached till
determination of a clear title Through a competent court of law. It is advisable for the
Government to secure an educational institution; though private, but it is prime duty of the
authority concerned i.e. the Educati on Department, Government of Balochistan to look into the
affairs of an educational institution and to keep it on right path to save the children, who are the
real affectees.
With the above noted observations the petition stands disposed of in the above terms.
The office is directed to send a copy of this decision to the Chief Secretary, Government
of Balochistan and the Secretary, Education Department, Government of Balochistan for strict
compliance with the direction to submit their compliance repor t to this court within three weeks
for perusal in chamber.
MH/50/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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