P L D 201 3 Balochistan 6
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
ISHAQUE ---Appellant
Versus
RASHEED and 2 others ---Respondents
Criminal Acquittal Appeal No.100 of 2012, decided on 24th October, 2012.
(a) Illegal Dispossession A ct (XI of 2005) ---
----S. 3---Criminal Procedure Code (V of 1898), Ss.265 -K & 417 ---Appeal against acquittal --
-Appreciation of evidence ---Ownership of subject property not established ---Time and date
of dispossession not mentioned ---Civil proceedings p ending with regard to subject
property ---Effect ---Complainant (appellant), who claimed to be lawful owner of subject
property, filed a complaint against accused persons (respondents) under the Illegal
Dispossession Act, 2005 ---After framing of charge, accused persons filed an application
under S.265 -K, Cr.P.C, which was accepted by the Trial Court and they were acquitted of the
charge ---Validity ---Admittedly, complainant was not recorded owner of subject property and
he had not brought any material on r ecord in support of his complaint ---Perusal of complaint
showed that grandfather of complainant had granted/gifted part of the subject property to the
accused persons ---Such admission in the complaint created hurdles in the way of the
complainant ---Content s of complaint did not reveal as to when accused persons occupied the
subject land ---Non-mentioning of such fact in the complaint created serious doubts with
regard to applicability of Illegal Dispossession Act, 2005 in the matter ---Civil litigation
regard ing the subject property was sub judice before the civil court and present criminal
proceedings appeared to be an attempt to prevent the civil proceedings ---Trial Court had
rightly allowed the application filed under S.265 -K, Cr.P.C as the law was settled that
incompetent proceedings must be buried at their very inception ---No probability existed of
accused persons being convicted of any offence ---Appeal against acquittal was dismissed, in
circumstances.
(b) Illegal Dispossession Act (XI of 2005) ---
----S. 3 & Preamble ---Dispossession occurring prior to enforcement of Illegal Dispossession
Act, 2005 ---Scope ---Such dispossession did not entitle the complainant to resort to the
provisions of Illegal Dispossession Act, 2005.
(c) Criminal Procedure Code (V of 1898) ---
----S. 265 -K---Application under S. 265 -K, Cr.P.C, filing of ---Stage of proceedings ---
Scope ---No particular juncture/stage was provided in the Criminal Procedure Code, 1898 for
filing an application under S.265 -K, Cr.P.C and it was t he idiosyncrasy of an accused to
make such an application and the judicial wisdom of the court seized of the matter to take
into account as to whether the application so filed could be disposed of in view of the
material on record.
Rehmatullah Bareach f or Appellant.
Nemo for Respondents.
Date of hearing: 22nd October, 2012.
ORDER
MUHAMMAD NOOR MESKANZAI, J. ---Instant appeal is directed against the
order dated 30th April, 2012 passed by the Incharge Additional Sessions Judge, Turbat
whereby com plaint filed by appellant under Sections 3, 4 and 8 of Illegal Dispossession Act,
2005 was dismissed.
2. Facts relevant for disposal of instant appeal are that the appellant filed a complaint
against private respondents in the Court of Additional Session s Judge, Turbat. It was alleged
therein that he and his family members are lawful owners of property bearing Kh/Kh
No.34/34, Khasra Nos. 181, 187 and 188 situated at Machat Balnigore, recorded in the name
of his grant father namely Shaho, who had gifted o nly one piece of land to respondent No.1
Rasheed where upon he constructed a boundary wall and then sold out the same to
respondent No.2 Fida Hussain. However, after lapse of time they illegally and unlawfully
occupied all the landed property of complainan t. The complainant through notables of the
area approached the private respondents and requested them to vacate possession but they
flatly refused to vacate the same.
3. Thereafter the matter was sent to Naib Tehsildar Balnigore for enquiry under secti on
3 of the Act, The Naib Tehsildar after enquiry submitted his report. On receipt of report
charge was framed against respondents on 26 -1-2012, to which they pleaded not guilty and
claimed trial.
4. The private respondents after framing charge fil ed an application under section
265-K, Cr.P.C. The said application was opposed by the appellant, however, the learned
trial Court vide order dated 3rd April, 2012 accepted the application and private
respondents were acquitte d of the charge, hence instant appeal.
5. Learned counsel for appellant submitted that the trial Court committed material
irregularity by acquitting the private respondents at a pre -mature stage. There were sufficient
material available on record to connect the respondents with the commission of offence but
the learned trial court failed to take into consideration this aspect of the case. It was
next contended that though the appellant was not the recorded owner, yet the property vests
in appellant as he is entitled to inherit the same from his maternal grand father. The
conclusion drawn by the trial Court are not supported from the material available on record.
6. We have considered the arguments advanced by learned counsel for appellant and
have gone through the record. Perusal of the record reflects that admittedly appellant is not
recorded owner of the property nor for that matter any material has been brought on record in
support of his complaint. Perusal of the complaint reflects tha t grand father of appellant has
granted a piece of land to respondents. No doubt there is no revenue record to such effect but
the admission of appellant creates a great hurdle in his way. Besides, the contents of
complaint do not reflect as to when the respondents occupied the land. Non mentioning of
such fact by the complainant in his complaint creates serious doubt with record to
applicability of the provisions of Illegal Dispossession Act. Besides a civil litigation is sub
judice before the complete c ourt of jurisdiction and the instant Criminal proceedings appear
an attempt to prevent the said proceedings which is not permissible in the circumstances of
the present case. There is no cavil to the proposition that any dispossession by a person prior
to enforcement of Illegal Dispossession Act does not entitle the complainant to resort to the
provisions of Illegal Dispossession Act, 2005. On our analysis, the finding drawn by the trial
Court are neither perverse, speculative artificial in nature not suffe r for many material
irregularity. The trial Court keeping in view the facts and circumstances of the case has
rightly allowed the application filed under section 265 -K, Cr.P.C. as the law stands settled
that incompetent proceedings must be buried at its ve ry inception. Moreover, there is no
particular juncture/stage provided in the Cr.P.C. for filing application under section 265 -K,
Cr.P.C. It is the idiosynerasy of an accused to make such an application and the judicial
wisdom of the Court seized with the matter to take into account as to whether the application
so filed can be disposed of in view of the material available on record. If the Court is satisfied
that a valid, legal, justifiable, reasonable and speaking order can be passed on the basis of
avail able record then there is no hitch and harm in pressing into service the provision of
sections 265 -K and 249 -A, Cr.P.C. The trial Court has rightly allowed the application
because in view of the facts and circumstances of the case there was/is no pr obability of
the respondents being convicted of any offence, hence appeal is dismissed in limine.
MWA/102/Q Appeal dismissed.
2012 Y L R 2670
[Balochistan]
Before Muhammad Noor Meskanzai, J
Haji GHULAM MUHAMMAD ---Petitioner
versus
Haji ANWAR JAN and 3 others ---Respondents
Civil Revision No.158 of 2012, decided on 2nd August, 2012.
(a) Civil Procedure Code (V of 1908) ---
----O.XVI, R.1 & S.115 ---Revision ---"Case decided" ---Application for summoning of
another witness named in l ist of witnesses instead of witness allowed to be produced in
evidence by High Court in appeal ---Applicant's plea was that witness allowed by High Court
was absconder in a criminal case, thus, his attendance could not be procured ---Dismissal of
such applic ation by Trial Court ---Validity ---Order allowing or declining to admit evidence
either oral or documentary would not fall within purview of "case decided" ---High Court
dismissed revision petition for being not maintainable in circumstances.
Nawabzada Malik Habib Ullah Khan v. The Pak. Cement Industries Ltd. 1969 SCMR
965 and Haji Baz Muammad and another v. Mst. Humera alias Shireen Taj and 3 others PLD
2003 Quetta 128 rel.
(b) Civil Procedure Code (V of 1908) ---
----O.VII, Rr.9(1), 14 & O.XIII, Rr. 1, 2 & S.115 ---Revision ---"Case decided" ---Application
for production of documents as additional evidence ---Dismissal of such application by Trial
Court ---Validity ---Plaintiff had either referred to such documents in plaint nor annexed
thereto nor relied upon ---Plaintiff had violated provisions of O.VII, R.14 and O.XIII, R.1,
C.P.C. ---Order allowing or declining to admit evidence either oral or documentary would not
be a "case decided" within purview of S.115, C.P.C. ---High Court dismissed revision
petiti on for being not maintainable, in circumstances.
Nawabzada Malik Habib Ullah Khan v. The Pak. Cement Industries Ltd. 1969 SCMR
965 and Haji Baz Muammad and another v. Mst. Humera alias Shireen Taj and 3 others
PLD 2003 Quetta 128 rel.
Muhamm ad Akbar Sani for Petitioner.
Shahid Khalil -ur-Rehman for Respondents.
Date of hearing: 27th July, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Petitioner has called in question the legality
and propriety of the order dated 17th May, 2012 passe d by learned Majlis -e-Shoora, Loralai
whereby the application filed by the petitioner seeking for permission to examine another
witness instead of Nazar Muhammad and production of certain documents was dismissed.
2. The learned counsel for petitioner sub mitted that the appellant was allowed to produce
witness namely Nazar Muhammad by this Court vide order dated 13th March, 2012. The said
Nazar Muhammad was booked in a murder case pursuant to F.I.R. bearing No. 5 of 2011
dated 15th July, 2011. On account o f the criminal proceedings Nazar Muhammad is
absconder and, as such, the petitioner despite his level best effort is not able to procure the
attendance of said witness. Petitioner sought permission to produce some documents and
another witness whose name h as already been mentioned in the list of witnesses, filed by the
petitioner along with the suit. Besides, also requested for production. The learned Majlis -e-
Shoora rejected the application on the ground that since the High Court allowed the petitioner
to examine Nazar Muhammad but the petitioner has failed to procure the attendance of Nazar
Muhammad and thus, his application was rejected. Learned Counsel submitted that petitioner
is entitled to produce his witness, therefore, he may be permitted to produc e the witness who
has already been nominated in the list of witnesses. Besides, he may be allowed to produce
document mentioned in the said application.
Learned counsel for respondent vehemently opposed the request and submitted that
since petitione r was allowed by this Court to produce Nazar Muhammad but petitioner
failed to produce Nazar Muhammad despite various opportunities and, thus, he is not entitled
to produce any such person, nor legally the documents can be allowed to be produced.
3. Heard the learned counsel for parties. Prior to embarking upon the merits of the case
the prime point that requires consideration is the maintainability of petition. Admittedly the
petitioner has applied for additional evidence on the ground that pet itioner was allowed by
this Court while disposing of Civil Appeal No. 27 of 2010 to produce one Nazar Muhammad.
Now on account of non -availability of Nazar Muhammad, he may be allowed to produce
another witness namely Agha Muhammad son of Abdul Malik, who has already been
mentioned in the list filed along with the plaint. I have considered the contentions put forth
by the parties' learned counsel and gone through the record. It appears that this Court vide
order dated 13th March, 2012 allowed petitioner to produce Nazar Muhammad as his
witness. For ready reference operative portion of the judgment passed by this Court is
reproduced herein below: --
"The case is remanded to the court of learned Majlis -e-Shoora Loralai with directions
to provide fair opportun ity to the petitioner/ plaintiff to produce witness Nazar
Muhammad subject to payment of cost of Rs.1000. The respondents/ defendants be
also provided an opportunity to record the statement of their attorney in rebuttal, if
opted. After the above exercise the learned trial Judge is directed to decide the case
afresh strictly in accordance with law and give findings on each issue on the basis of
oral as well as documentary evidence without being influenced from earlier judgment
and decree dated 29 -4-2010."
4. The application for additional evidence was declined by the trial Court. Legally
speaking an order whereby an evidence either documentary or ocular is admitted or declined
to admit is not a "case decided" within the meaning of section 115 C.P.C. and t he order
impugned passed by trial Court is one which falls within the definition of such orders.
Through the petitioner seeks to produce a witness as substitute to the witness permitted to be
produced by this Court but on account of the fact that the orde r does not fall within the
purview of "case decided", the petition does not seem to be maintainable. Similarly certain
documents referred to hereinabove were sought to be produced before the trial Court.
Admittedly, the documents so referred neither have been referred to in the plaint nor have
been relied upon and annexed with the plaint, as such; the requirement of the law that the
documents so relied upon are to be listed and to be produced along with plaint on first date of
hearing has absolutely been v iolated. Secondly, the impugned order does not fall within the
definition of "case decided", therefore, is not revisable. By holding the view I am fortified by
the judgments titled as Nawabzada Malik Habib Ullah Khan v. The Pak. Cement Industries
Limited r eported in 1969 SCMR page 965. Relevant observation therefrom is reproduced
herein below: --
"An order admitting or declining to admit evidence oral or documentary does not
amount to a "case decided" within the purview of section 115, C.P.C. the High Cour t
could not, therefore, interfere with the order of the trial Court in exercise of its
revisional jurisdiction".
Similar view was taken in the judgment titled as Haji Baz Muhammad and another v.
Mst. Humera alias Shireen Taj and 3 others reported in PLD 2003 Quetta 128. Relevant
observations therefrom are reproduced herein below: --
"Coming to the next contention of Mr. Adnan Basharat, learned counsel .for the
respondents that it is not a case decided. It was agreed that allowing or rejecting an
applica tion for oral or documentaty evidence does not fall within the definition of a
case decided. The contention of learned counsel has substance that while rejecting the
application under Order XIII, Rule 1, C.P.C. does not lie within the definition of a
case decided."
In the light of above discussion and at the strength of the judgments referred to herein
above, the petition being not maintainable is dismissed with no order as to costs.
SAK/84/Q Petition dismissed.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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