2010 Y L R 1969
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
Messrs KALA KHAN TAREEN, COAL COMPANY DUKI through attorney ---
Petiti oner
Versus
MEHRAB KHAN and 5 others ---Respondents
Criminal Revision No. 16 of 2006, decided on 17th March. 2010.
Illegal Dispossession Act (XI of 2005) ---
----Ss. 3, 4, 5 & 9 ---Illegal dispossession ---Proceedings under Ss.3, 4, 5 & 9, Illegal
Dispossession Act, 2005 ---Scope ---Complaint by complainant under Illegal
Dispossession Act, 2005 had been dismissed by the Trial Court ---Trial Court on receiving
complaint sent the same to the concerned S.H.O. for investigation of the matter, who
submitted his report and Trial Court after hearing the parties, dismissed the complaint ---
Validity ---Complaint was made under the provision of Illegal Dispossession Act, 2005,
which was a special law and would prevail over the general law ---Dispute in respect of
property and mining was pending between the parties since long ---Both the parties were
litigating before different forums, and as to what was the result of the same, no specific
order was placed on record in that respect ---Settlement of title and possession t hereof was
out of the scope in proceedings initiated under Illegal Dispossession Act, 2005, decision
in respect of title and ownership, in circumstances, had less bearing on proceedings
pending under provisions of the Act ---Only fact which was required to be considered and
decision given was to the effect of possession of the aggrieved person, which was
disturbed by the other side without any lawful excuse ---In the present case, the
complainant though had claimed himself to be in possession of property in q uestion, but
neither in the complaint nor in pleadings, the exact date of dispossession was disclosed ---
Area from which the complainant was dispossessed, exact measurement and the
boundaries were not specified in the complaint ---Complainant had not alleged that he had
been deprived of the whole area leased in his favour, property in question thus was not
specific ---Suit and constitutional petition were pending before filing of the complaint ---
Complainant was well aware about the act of the respondents, but despite that he
remained silent for more than one year, whereafter he filed the complaint ---Complainant
had failed to assign any reason for such delay ---Rapid remedy was provided under Illegal
Dispossession Act, 2005 ---Litigation was pending between the pa rties on civil and
revenue side and the rights were to be ascertained by the said courts under relevant law,
which could not be interfered in the present proceedings ---Trial Court, therefore, had
come to the right conclusion ---Complainant having failed to make out any case in his
favour, petition was dismissed being without merits.
M. Qahir Shah and Baz Muhammad Kakar for the Petitioner.
Kamran Murtaza and Miss Saima Jamal for the State.
Date of hearing: 27th October, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The petitioners being aggrieved of order made
on 6-3-2006 by District and Sessions Judge, Loralai, whereby the complaint filed by him
under Illegal Dispossession Act 2005, was dismissed, preferred present petition with
contention that t rial Court misappreciated the facts and misapplied the law thereby draw
conclusion which is neither legal, nor tenable under the law. Further, the report submitted
by S.H.O. has been overlooked by the trial Court. Though, the respondents failed to
produce any document in their favour, but the trial Court failed to consider this aspect of
the case. The respondents after dispossessing him excavating coal from the disputed area
and selling the same without any license or permit. They being victim be compensate d in
accordance with section 544, Cr.P.C. and section 3(2) of Act 2005, but the trial Court
failed to do so, further, made error while holding that civil litigation is pending between
the parties. Rather the petitioner is unlawfully and illegally disposses sed from the mines
area in question in month of September 2005, as such the remedy provided as per special
law, cannot be deprived of the same. The award dated 17 -8-1973 is misinterpreted and
misconstrued by the trial Court, as the same does not give any r ight of mining in favour
of respondents. The petitioner has prayed for setting aside of impugned order, and
possession of area in question be restored to him and respondents be punished in
accordance with law.
The perusal of the record reveals that a com plaint under provisions of Illegal
Dispossession Act, 2005 was filed by the petitioner on 21 -10-2005 before the Court of
District and Sessions Judge, Loralai, whereby the petitioner claimed himself to be lease
holder of area, and excavating coal from the s ame. While the respondents are asserted to
be residents of nearby area. It has been alleged therein that about a month ago, the
respondents without any legal authority started illegal mining operation in said leased
area of Kala Khan Tareen Company (petiti oner) thereby grabbed the leased area without
having legal right for doing so. The petitioner has prayed for dispossession of respondents
from the area and restoration of the same to him, while restrained the respondents from
doing so, thereby obtaining he avy surety and they be punished for the offence. The
respondents in reply strongly contested the averments made by the petitioner. According
to them, matter in dispute is of civil nature, while a civil suit is already pending between
them in the Court of S enior Civil Judge, Loralai. They further asserted that after grant of
lease a dispute arose between the parties, which was settled by the Tribunal in year 1973,
award was obeyed in all these years, but it was violated in 2004, whereupon they filed a
civil suit. They prayed for dismissal of complaint. The trial Court on receiving complaint
sent it to concerned S.H.O. for investigation of the matter, who submitted his report dated
11-11-2005. The trial Court after hearing the parties dismissed the complaint t hrough
order made on 6 -3-2006, which is presently impugned before this Court.
During course of arguments, the learned counsel for the petitioner contended that the
provisions of Criminal Procedure Code are fully applicable in the proceedings held under
Illegal Dispossession Act 2005, therefore, the trial Court is bound to adopt the procedure
provided therein. Further, the civil suit has already been dismissed. Furthermore, mere on
ground of filing of civil suit complaint cannot be rejected. In rebuttal, i t is contention of
counsel for respondents Nos. 1 to 5 that when civil suit is pending, proceedings under this
Act are not maintainable. Further, as per this Act calling and recording of evidence is not
mandatory, rather if the trial Court consider it nece ssary evidence can be called. Learned
State counsel relied on arguments made by counsel for respondents Nos.1 to 5.
The petitioner is aggrieved of dismissal of his complaint filed against the respondents.
The complaint was made under provisions of the Il legal Dispossession Act 2005, as it is a
special law, therefore, it will prevail over the general law. While the proceedings effected
thereon are required to be in consonance with the provisions of said Act of 2005. Section
5 of the Act describe the proced ure required to be adopted by the Court taking cognizance
of the matter. The section speaks as under: -
Investigation and Procedure: --
(1) Upon a complaint the Court may direct the officer -in-charge of a Police Station
to investigate and complete the sa me within fifteen days to the Court.
(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".
Whereas, section 3 provides the nature of the offence triable u nder this Act and also
provides the punishment for the offence committed thereon, which is reproduced as
under: -
"Prevention of illegal possession of property etc, -
(1) No one shall enter into or upon any property to dispossess, grab, control or
occupy it without having any lawful authority to do so with the intention to
dispossess, grab, control or occupy the property from owner or occupier of such
property;
(2) Whoever contravenes the provisions of the subsection (1) shall, without
prejudice to any punishment to which he may be liable under any other law for the
time being in force, be punishable with imprisonment which may extend to ten
years and with fine and the victim of the offence shall also be compensated in
accordance with the provisions of s ection 544 of the Code".
Thus keeping in view of the same any person in capacity of either owner or occupier can
apply the Court in respect of commission of the offence in result thereof he had been
dispossessed or put out of control or occupation of the property in question. The
complaint filed by the aggrieved person is required to be entertained by the Court of
Session being the competent Court as per section -4 of the Act, while adopting the
procedure as provided in section 5 of the Act as mentioned ab ove. While as per section -9
the provisions of Code of Criminal Procedure shall apply to all proceedings under this
Act, unless otherwise provided. Keeping in view the above mentioned section on
receiving of complaint the Court may direct the officer in cha rge of a Police Station to
make investigation and submit his report. While as per subsection (2) of section -5 after
taking cognizance of the case the Court shall proceed with the trial from day to day and
shall decide the case within sixty days. The proced ure of trial is not provided in the Act,
in such circumstances the procedure which is required to be adopted as provided in
Criminal Procedure Code. Sections 265 -B to 265 -N provide the procedure required to be
observed by the Court of Session in trial of c ases.
As per record in present case on filing of complaint by the petitioner, the concerned
S.H.O. was directed for conducting of inquiry and submitting of report, who submitted
the report dated 11 -11-2005. On receipt of the same the trial Court after he aring counsel
for the parties decided the complaint through order made on 6 -3-2006, which is presently
impugned before this Court. The perusal of record reveals that the trial Court after
receiving of report from S.H.O. did not consider it necessary to cal l any other evidence,
rather simply decide the complaint relying on the report. The perusal of this report reveals
that the same is not a conclusive and final report, rather it is an interim report, as it is
mentioned therein that up till receiving report of Revenue Department and demarcation of
the property no final report can be given. It is the main contention of the counsel for the
petitioners that the Court was required to frame charge, record evidence, whereafter,
decide the complaint, as the trial Co urt failed to observe the procedure therefore,
impugned order is liable to be set aside. Though on institution of cases either on police
report or on complaint in writing after supplying of copies of statements and documents
or complaint to the accused per son, Court is required to frame charge, but a discretion is
provided therein which is required to be exercised by the Court before framing of charge.
Section 265 -D speaks as under: -
"265 -D. When charge is to be framed . If, after perusing the police repor t or , as the
case may be, the complaint, and all other documents and statements filed by the
prosecution, the Court is of opinion that there is ground for proceedings with the
trial of the accused it shall frame in writing a charge against the accused".
As per the same the trial Court has to consider the material before framing of the charge,
whereafter, commence with the trial. In present case, the trial Court only called
investigating report from the relevant S.H.O., thereby decide the matter, no charg e is
framed, nor any witness is called. Now the point which is required to be consider that
whether the trial Court exercised its discretion or formed its opinion on material present
on record, or otherwise.
The petitioner' claimed himself to be in posse ssion of plot in question, wherein the
respondents are making interference, while excavating coal. There is denial from the
other side. The respondents filed several documents on record, notice whereof was given
to the counsel for the petitioner, who did n ot contest or rebut the same. The perusal of
these documents reveals that in past some dispute arose between the parties which was
decided through order dated 17 -8-1973 made by Assistant Commissioner Duki -Sinjavi,
which is an admitted fact. It is further a pparent from these documents that a civil suit was
filed by the respondents in year 2004, which was contested by the other side. What was
the fate of this suit there is nothing on record. It is further apparent from record that a
constitutional petition wa s filed by one Mst. Nasira wife of Mir Haji Tareen, which was
also in respect of some dispute pertaining to property/mining lease No. ML -53 (1988)
measuring 333, 54 acres. The said petition was filed in year 2005, while the same was
dismissed for non -prose cution through order made on 23 -6-2005 by this Court.
From all above mentioned documents/facts this can easily be presumed that dispute in
respect of property and mining is pending between the parties since long. Both the parties
are litigating before di fferent forums, what was result of the same no specific order is
placed on record. The settlement of title and possession thereof is out of scope in
proceedings initiated under Act of 2005. Thus the decision in respect of title and
ownership has less beari ng on proceedings pending under provisions of Act of 2005.
Rather, the only fact which is required to be considered and decision is to be given to the
effect of possession of the aggrieved person, which is disturbed by the other side without
any lawful exc use. In present case though the petitioners claimed themselves to be in
possession of property in question, while asserted occupation of the area by the
respondents, who started excavation of coal from the same one month from the complaint.
But neither in the complaint, nor in present petition the exact date of dispossession is
disclosed. Secondly, the area from which they (petitioners) are dispossessed is not
mentioned in the complaint, exact measurement is not disclosed anywhere, nor the
boundaries are sp ecified in the complaint. As the leased area as per his own showing is
about 333. 54 acres. It is not their case that they have been deprived of the whole area
leased in their favour. In view of the same property in question is unspecific. Further, the
suit and constitutional petition were filed which remained pending before filing of this
complaint, thus the petitioner was well aware about the act of the respondents. Despite
the same he remained silent for more than one year, whereafter, filed the instant
complaint. The learned counsel for the petitioner failed to assign any reason for such a
delay. A rapid remedy is provided under this Act, which is required to be availed in time.
Surely litigation is pending between the parties on civil and revenue side, the rights are to
be ascertained by the concerned Courts under relevant law, which cannot be interfered in
present proceedings. The trial Court, with some reservation, comes to the right
conclusion.
The petitioner has failed to make out any case in his f avour. The petition is dismissed
being without merits.
H.B.T./47/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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