2010 Y L R 2139
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD QASIM and others ---Petitioners
Versus
AHSAN RAZA and 2 others ---Respondents
Crimi nal Revisions Nos. 84 and 57 of 2009, decided on 8th January, 2010.
Illegal Dispossession Act (XI of 2005) ---
----Ss. 3, 4, 5, 6, 7 & 9---Criminal Procedure Code (V of 1898), S.248 ---Illegal dispossession --
-Complaint against ---Withdrawal of complaint ---Attachment of property ---School building
and residential flat owned by the petitioner, having forcibly been occupied by respondent,
on direction of the petitioner, the other complainant filed complaint ---Trial Court took
cognizance in the matter and issue d process ---Respondent failed to explain as to how he
came into possession of property in question ---Trial Court passed interim order whereby
property in dispute was attached and Nazir of the Court was appointed to take accounts ---
During proceedings, compl ainant filed application under S.248, Cr.P.C. for withdrawal of
complaint and the Trial Court through the impugned order allowed withdrawal of the
complaint ---Trial Court found that as per S.9 of Illegal Dispossession Act, 2005 a
mechanism was provided to proceed in the complaint as per provisions of Criminal
Procedure Code, 1898 threrefore request for withdrawal was allowed ---Trial Court could
neither elaborate the point, nor discussed same and gave no proper reasoning in that
respect ---Case having been fi led in respect of the offence under Illegal Dispossession Act,
2005, which was a special law, procedure provided therein was to be observed, while
conducting trial/decision of the case ---No provision existed as to withdrawal of the
complaint in Illegal Dis possession Act, 2005 and once a complaint had been filed under
the said Act, it had to be decided as per provisions of that Act ---Trial Court having taken
the cognizance of the case, it had to observe procedure provided in the Act ---Impugned
order was set aside and complaint would be deemed to be pending before the Trial Court -
--Regarding order of attachment of school, though on dismissal of complaint through
impugned order, petition against attachment order had become infructuous ---As both the
parties clai med ownership of the property in dispute, it was an appropriate order to attach
the same ---School being in the property it was earning huge amount from the School ---
Held, in order to save the interest of the parties, it would be just and proper that order
attaching the property remained in field ---No illegality was pointed out by the petitioner
in that matter impugned order was upheld ---Case was remanded to the Trial Court with
direction to proceed with the matter in accordance with relevant law.
M. Zaf ar and Tahir Muhammad Khan for Petitioner (in Criminal Revision No. 84 of
2009).
Muhammad Sadiq Khokhar, Syed Abu Zar Haider for the Respondents (in Criminal
Revision No.84 of 2009).
Syed Abu Zar Haider, Qazi Abdul Malik and Saima Jamal for the State ( in Criminal
Revision No. 84 of 2009).
Mehmood Khokhar for the Petitioner (in Criminal Revision No.57 of 2009).
Habib Tahir and Syed Abu Zar Haider for Respondents (in Criminal Revision No.57 of
2009).
Qazi Abdul Malik and Saima Jamal for the State (i n Criminal Revision No.57 of 2009).
Date of hearing: 28th September, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---Through this Order I intend to dispose of above
mentioned two criminal revisions petitions bearing Nos.84 of 2009 and 57 of 2009, as
both the revisions are filed against orders made in same case i.e. private complaint No.8
of 2009, as the matters in issue are interrelated and parties are nearly the same in both the
petitions, thus in order to avoid conflicting orders both these petition s are decided with
this joint order.
In Criminal Revision Petition No.84 of 2009, it is case of petitioner Muhammad Qasim
that he along with his brothers, is owner of Quetta Public High School situated at Joint
Road, Quetta. While with their consent one Muhammad Ayub was appointed as
Administrator, Manager and Principal of the School in 1988, since then he held the office
and control the administration of the School, while lived in attached flat with his family.
It is further his case that father of respo ndent No.2 namely Muhammad Nazim and his
family lived with said Muhammad Ayub, who bear their expenses also. Thereafter, said
Muhammad Ayub while proceeding for England, left furnished flat for said Muhammad
Nazim, while respondent No.2, being educated per son, look after the affairs of the office.
It is further his case that on 17 -2-2009 respondent No.1 with assistance of Sardar Rafique
Tareen and his armed men forcibly occupied the school building and residential flat,
while kept his family as hostage. As respondent No.2 is his (petitioner's) nephew and also
the victim, therefore, he was directed to file complaint on his (petitioner) behalf. Thus on
filing of complaint Additional Sessions Judge -II, Quetta took cognizance in the matters
and issued process, i n response respondent No.1 appeared and filed his rejoinder,
whereby he failed to explain that how he came into possession of property in questions
except submitting a fake Fard in his favour. While an interim order was also passed by
the trial Court on 31 -5-2009, whereby the property in question was attached and Civil
Nazir was appointed to take the accounts. Being aggrieved of the same, respondent No.1
filed Criminal Revisions Petition No.57 of 2009, which is pending before this Court. It is
his case that during pendency of the complaint respondent No.1 along with his father
managed to win over respondent No.2 (the complainant), whereupon he filed an
application under section 248 Cr.P.C. for withdrawal of the complaint. While he
(petitioner) filed an appli cation for joining him as a party. The trial Court through order
made on 22 -7-2009 allowed withdrawal of the complaint, while dismissed his
(petitioner's) application.
The petitioner preferred present petition on grounds that as in the Act the word
compl ainant is not used, rather term owner and occupant is used, therefore, the
complainant is no one to terminate or withdraw the proceedings. Further, term
complainant only means a person who reports commission of an offence to Magistrate or
a Judge, thus pre sence of complainant is not intention of law. Furthermore, in view of
section 5(2) of the Act, after taking cognizance the whole responsibility of trial devolves
upon the Court, who has to hold the proceedings and decide the matter in provided time.
The ap plicability of section 9 of the Act is for limited purpose. The trial Court has mis --
exercised its authority and failed to understand the object of the relevant law. The
petitioner has prayed for setting aside of impugned order while the case be deemed
pending, further he be allowed to pursue the case in this capacity as owner, occupier,
affectee.
Petitioner Ahsan Raza of Criminal Revision Petition No.57 of 2009 is aggrieved of order
dated 30 -5-2009 made by Additional Sessions Judge -II, Quetta, whereby an application
under sections 6 and 7 of Illegal Dispossession Act of 2005 filed by respondent No.1
(Muhammad Naqi) was allowed. It is his contention that a complaint has been filed by
respondent No.1 contending therein that he has been dispossessed by the p resent
petitioner along with other persons equipped with lethal weapons. During pendency
respondent No.1 filed application under sections 3/4 and 6/7 of Act of 2005, which was
strongly contested by him. But the trial court allowed the same through order ma de on 30 -
5-2009, whereby directed Civil Nazir to collect all the information about running of the
school, the utility bills, account, salaries of the staff, number of students etc. It is his
contention that the material placed on record by him was not exam ined by the trial Court,
no inquiry was made, no material in respect of ownership of school is produced by
respondent No.1. He has prayed for setting aside of the impugned order dated 30 -5-2009.
The perusal of record reveals that a complaint under sectio ns 4, 7 and 9 of Illegal
Dispossession Act was filed by one Muhammad Naqi, respondent in present petitions, on
21-2-2009 against Ahsan Raza, petitioner of Criminal Revision Petition No.57 of 2009
and one Muhammad Ilyas, wherein it is contention of the comp lainant that respondent
No.1 (Ahsan Raza) is neither owner, nor ever in possession of property in question
illegally dispossessed him and his family from the same. The complaint was contested by
Ahsan Raza, who claimed himself to be the owner and occupier of property in question.
During pendency of the complaint an application under sections 6 and 7 of Illegal
Dispossession Act, 2005 was filed, whereby attachment of accounts and appointment of
receiver was prayed. This application was allowed by the trial c ourt through order made
on 30 -5-2009, whereby it was ordered that the school in question is attached, while the
Civil Nazir is directed to collect all the information about running of school, the utility
bills, the accounts, the salaries of the staff, the number of students etc. Being aggrieved of
this order Ahsan Raza filed Criminal Revision Petition No.57 of 2009, which is pending
for decision before this court. No report of Civil Nazir is present on record, as this court
through order made on 5 -6-2009 su spended the operation of impugned order next date of
hearing. The perusal of order sheets reveals that this order was not extended on remaining
dates of hearing. But during course of proceedings the main case i.e. private Complaint
No.8 of 2009 was dispose d of as it was allowed to be withdrawn through order made on
22-7-2009 by the Additional Sessions Judge -II, Quetta. Being aggrieved of the same
Criminal Revision Petition No.84 of 2009 was filed by one Muhammad Qasim, which is
also pending and now both the se petitions are under consideration before this court.
During course of proceeding while accepting application for inspection of site through
Local Commissioner, it was ordered on 21 -8-2009 by this court that Mr. Shamsuddin is
appointed as Local Commissio ner, who is directed to submit his report in respect of
possession of property in question. The report dated 22 -8-2009 submitted in compliance
thereof in present on record.
Before touching merits of the case the legal position is required to be seen, as the
petitioner Muhammad Qasim is aggrieved of order whereby he was declined to make
party to the proceedings, while the complainant Muhammad Naqi was allowed to
withdraw the complaint filed by him. As per impugned order dated 22 -7-2009 it was held
by the t rial Court that as per section 9 of Illegal Dispossession Act of 2005 a mechanism
is provided to proceed in the complaint as per provisions of Criminal Procedure Code,
therefore, request for withdrawal was allowed. The learned trial court neither elaborate
the same, nor discussed it, neither give proper reasoning in same respect.
During course of arguments the main contention of the learned counsel for the petitioner
is that once the court has taken the cognizance the complaint cannot be withdrawn, as the
court is required to make investigation in the matter. Further, even after withdrawal of
complaint the offence remains. Furthermore, sufficient grounds for withdrawal are to be
shown by the complainant. While rebutting the same it is contention of learned counsel
for respondent No.1 that the present petition is not maintainable, rather it was required to
be filed under section 417(2), Cr.P.C. He further denied title and possession of the
petitioner. As per learned counsel for respondent No.2 that when a co mplainant does not
want to pursue, how he can be compelled to do so. As far as learned State counsel is
concerned he simply relied on the record present before this court.
The order impugned before this court i.e. order dated 22 -7-2009, whereby the trial court
i.e. Additional Sessions Judge -II, Quetta allowed the application for withdrawal of the
complaint, while the accused is discharged and order dated 30 -5-2009 whereby property
in question was attached. As per record one Muhammad Naqi filed a complaint under
sections 4, 7 and 9 of Illegal Dispossession Act, 2005, against Ahsan Raza and
Muhammad Ilyas. During course of proceeding the management of school and accounts
were attached through order dated 30 -5-2009, while proceedings in same respect were in
progress the complainant filed an application under section 248, Cr.P.C. for withdrawal of
complaint. This application was allowed through the impugned order. The point which
requires consideration at first instance is whether the complaint filed under prov isions of
Act-XI of 2005 can be withdrawn or not. As per appellant this cannot be done as there is
no provision in the Act. While counsel for respondent objected the same. The application
for withdrawal was moved under section 248 Cr.P.C., which speaks as under: -
"248. Withdrawal of complaint .---If a complainant, at any time before a final order
is passed in any case under this Chapter, satisfies the Magistrate that there are
sufficient grounds for permitting him to withdraw his complaint the Magistrate
may permit him to withdraw the same, and shall thereupon acquit the accused."
As per the same the complainant has the right to withdraw the complaint filed by him
with condition to satisfy the Magistrate that there are sufficient grounds for withdrawal of
the complaint. As the case in hand is filed in respect of an offence under sections of
Balochistan Illegal Dispossession Act, 2005, a special Law, therefore, the procedure
provided therein is to be observed, while conducting trial/ decision of the case. A s per
section 4 of the Act the offence defined in section 3 of the Act shall be triable by the
Court of Session on a complaint. Section -5 of the Act describes the procedure of trial and
of investigation required to be made by the Court. While sections 6, 7 and 8 describe the
procedure required to be observed while attachment of the property, eviction and mode
recovery of the property and delivery of possession to owner on conclusion of trial. There
is no provision as to withdrawal of the complaint during it s pendency. The learned trial
Court while accepting request for withdrawal applied provisions of Criminal Procedure
Code as provided in section 9 of the Act, which speaks as under: -
"9. Application of Code .---Unless otherwise provided in this Act, the pr ovisions of
the Code of Criminal Procedure, 1898 (V of 1898), shall apply to proceedings
under this Act."
As per the same the provisions of Criminal Procedure Code are applicable to the
proceedings under this Act. But it has to be noted that the applicat ion made by the
complainant Muhammad Naqi was for withdrawal of the complaint under section 248,
Cr.P.C. But this section relates to the proceedings pending before the Magistrate. But case
in had is for an offence only triable by the Court of Session. How the same will be
applicable in respect of proceedings held by a Sessions Judge, on this query the learned
counsel for the respondents failed to reply the same. There is no such provision of
withdrawal of the complaint in respect of cases pending adjudicati on. In case the above
said section is deemed to apply on cases pending before the Court under Act of 2005 the
complainant is required to satisfy the Court for the reasons on basis of which he intends
to withdraw his complaint, on satisfaction the trial Cou rt can permit for withdrawal,
otherwise refused. The discretion is required to be exercised in legal manner. In addition
to the same section 249, Cr.P.C. provides further instance when there is no complainant,
the Magistrate may for the reasons to be recor ded by him stop the proceedings at any
stage without pronouncing any judgment of acquittal or conviction and may thereupon
release the accused. This is another instance of disposal of a criminal case.
It is to be observed that the trial court without con sidering the legal position simply
accepted the application for withdrawal of the complaint filed by the complainant, which
is neither just, nor proper. The trial Court further failed to assign any reason for
acceptance of the request for withdrawal which is again neither just, nor proper. As there
is no provision for withdrawal of complaint pending before Court of Session that too
under provisions of Act -XI of 2005, therefore, once a complaint has been filed under
provisions of Act XI of 2005, it has to be decided as per provisions of the Act. In present
case too the trial court has taken the cognizance of the case, therefore, it has to observe
the procedure provided therein i.e. section 5 of the Act.
In view of above discussion the Revision Petition No.8 4 of 2009 is required to be
accepted while setting aside order dated 22 -7-2009 and the complaint will be deemed to
be pending before the trial Court.
As far as Revision Petition No.57 of 2009 is concerned, it was filed in respect of order
made on 30 -5-2009 by the trial Court. Through this order the school in question was
attached, while Civil Nazir was directed to collect all the information about the school
and submit his report. Though on dismissal of complaint through order made on 22 -7-
2009 this revis ion petition become infructuous, but as both the petitions were taken up
and proceeded together, therefore, no order was made on said petition at relevant time.
But now as order made on 22 -7-2009 is set aside, while complaint deemed to be pending
before th e trial Court, therefore, this petition is also required to be decided on merits.
Petitioner Ahsan Raza seeks setting aside of the order on grounds that the trial Court
failed to appreciate the material present on record in its true prospective. In prese nt case
both the parties claim ownership with possession of property in question, while several
Civil and Criminal cases are pending between the parties. In the circumstances of the
case, it is an appropriate order to attach the school in question, as the school is running in
the property in question, while there is earning of huge amount from the said business.
Thus in order to save the interest of the parties, both complainant and the respondents, it
will be just and proper that the order dated 30 -5-2009 will remain in field. No illegality is
pointed out by the petitioner in the same due to which interference is required to be made
in the same. Thus in view of above discussion the Revision Petition No.57 of 2009 is
dismissed being without merits.
In view of above discussion the Revision Petition bearing No.57 of 2009 is hereby
dismissed being without merits. The order of the trial Court dated 20 -5-2009 is upheld.
While the second Revision Petition bearing No.84 of 2009 is accepted. The impugned
order date d 22-7-2009 is set aside; the case is remanded to the trial court with direction to
proceed with the matter in accordance with relevant law. While the applications both
dated 2 -7-2009 for impleading applicant Muhammad Qasim as party and for freezing
surplu s accounts filed by present petitioner Muhammad Qasim are deemed pending
before the trial Court which are to be decided on merits after giving opportunity of
hearing to the parties. The trial Court is further directed to determine the method of
management of school and made order accordingly without any loss of time.
Revision Petitions Nos.57 of 2009 and 84 of 2009 are disposed of in above terms.
H.B.T./35/Q 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,
let us know.