' SYED SHABBAR RAZA RIZVI, J.---This criminal revision has been filed for quashment of proceedings pending before respondent No,1, Habib Ullah Aamir, A.S.J., Attock.
2. Respondent No,2, Muhammad Munir son of Muhammad Rafiq filed a complaint against the petitioners under Illegal Dispossession Act, 2005 before the learned Sessions Judge, Attock. The same was entrusted to A.S.J., Mr. Sajid Mehmood Chatha. On application of the petitioners, the case was transferred and entrusted to Mr. Habib Ullah Aamir, A.S.J. Attock. The petitioners filed an application under section 265-K, Cr.P.C. Which was dismissed vide the impugned order dated 6-7- 2006.
3. The petitioners filed the present criminal revision which consists of full eight pages. The criminal revision is full of accusations and insinuations both against the respondents as well as learned Judges. However, petitioner's main contention is that the complaint under Illegal Dispossession Act, 2005 cannot be filed directly before the learned Sessions Judge. It should be routed through the learned Magistrate as contemplated under sections 190(2) and 193, Cr.P.C., thus, the complaint pending before the learned Additional Sessions Judge was incompetently filed. He also contended that his application under section 265-K, Cr.P.C. Was also illegally and incompetently dismissed. In addition to that, he contended that proceedings pending before the learned Additional Sessions Judge should be declared unlawful and without jurisdiction and be quashed.
4. To meet the points raised by the learned counsel for the petitioners, a brief analysis of the Illegal Dispossession Act, 2005 (hereinafter called Act) would be expedient. This Act consists of 9 sections.
Section 1 deals with short title, extent and commencement. Section 2 defines different words employed in the Act. Section 3 says that 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. Sub- clause (2) of section 3 provides for a punishment for an offender who contravenes the provisions of subsection (1) of section 3. Section 4 provides that notwithstanding anything contained in the Code or any law, the contravention of section 3 shall be triable by the Court of Session on a complaint.
Under section 5, the Court may direct the officer-in-charge of a police station to investigate the complaint and forward the report within 15 days to the Court. This section further provides that on taking cognizance of a case, the Court shall proceed with the trial from day to day and shall decide the case within 60 days. Section 6 empowers Court to attach the property until final decision of the case. Section 7 empowers Court during the trial to pass an interim order and put the owner in possession of the disputed property. Section 8 empowers Court, on conclusion of trial, if the Court finds that an owner was illegally dispossessed, etc. Restore the property to the owner. Section 9 provides that unless otherwise provided in this Act, provisions of Code of Criminal Procedure shall apply to proceedings under this Act.
5. The brief resume of the Illegal Dispossession Act, 2005 clearly shows that it is a special law and the procedure is also provided therein. However, the provisions of the Code shall apply to the proceedings under this Act, wherever required.
6. The contention of the learned counsel for the petitioner that Sessions Judge can only try the complaint under section 4 if it is routed through a Magistrate following the provisions of sections 190(2) and 193, Cr.P.C. Are not tenable. Any complaint which discloses contravention of section 3 is triable by the Court of Session as it is clearly provided in section 4 of the Act. Section 5 further clarifies the provisions as it requires that upon a complaint, the Court may direct the officerin- charge of the police station to investigate and complete investigation and forward the same within 15 days to the Court. If the Sessions Judge was not required to entertain complaint or try the complaint directly, he would not have conferred upon powers mentioned in section 5 of the Act.
Subsection (2) of section 5 further provides that on taking cognizance of a case, the Court shall proceed with the trial on day to day basis, and shall decide the case within 60 days and for any delay, sufficient reasons shall be recorded. As it is clear from section 4, the Court of Session takes cognizance on a complaint directly filed to it, therefore, the provisions of sections 190(2) and 193 are not applicable in any case filed under the Act which is a special law. There are number of judgments on the subject that when on a subject special law is provided, provisions of special law shall prevail upon provisions of general law. For convenience, PLD 1973 SC 49 and 1964 SC 673 are referred to.
7. In Muhammad Younas v. Shahid Cheema and 2 others 2006 PCr.LJ 636, the learned Single Bench of this Court held that under ,section 4(1) the offence regarding contravention of section 3 is exclusively triable by the Court of Session on a complaint. The same judgment further provides that section 5 of the Act provides the procedure to deal with the complaint under sub-clause (1) thereof on a complaint to direct the officer-in-charge of the police station to investigate and complete investigation and forward the same within 15 days to the Court. The same judgment further notes that under the Act, the Court has to first refer the matter to the S.H.O. Concerned for investigation into the matter and after receipt thereof cognizance will be taken by the Court. Therefore, the above judgment also strengthens my humble view that collective reading of sections 4 and 5 of the Act leaves no doubt that the intention of the law makers is that the complaint is to be filed directly to the Sessions Court and he is required to take cognizance on such report, thereafter, try the complaint on the basis of evidence/material collected by the S.H.O. Provisions of sections 190(2) and 193, Cr.P.C. Have no relevance, at all, when a complaint is filed under the Illegal Dispossession Act, 2005. In another case, Capt. M.S. Aslam v. State PLD 2006 Karachi 221, the learned Court held as under:-- "The learned counsel further failed to appreciate that section 5 of the "said Act" lays down a procedure to be adopted by the Court of Session upon a complaint and provides that upon a complaint the Court may direct the officer-incharge of the police station to investigate and complete the investigation and forward the same within 15 days to the Court".
8. At this point, provisions of section 193, Cr.P.C. May also be examined. Section 193 reads as under:- - "Except as otherwise expressly provided by this Code or by any other law for the time being enforced, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been sent to it under section 190(2)."
' The reading of section 193 indicates that a Court of Session can take cognizance directly if it is expressly provided by the Code or by any other law for the time being enforced. The Illegal Dispossession Act, 2005 is a law for the time being- enforced in the country. It may be recalled and reminded that Act was enforced on 6-7-2005.
9. Consequent to the above discussion and also on the basis of the above enumerated reasons, I hold that if a person has a grievance as mentioned in section 3 of the Illegal Dispossession Act, 2005, the Sessions Court is competent to entertain and try the complaint, the Court may take cognizance himself as mentioned in section 4 of the Act or entrust the same to an Additional Sessions Judge. He shall generally follow the procedure provided in the Act itself, however, the provisions of Code of Criminal Procedure shall be applicable during the proceedings but subject to the provisions of the Act. It is further held that a complaint filed under the Act does not require to be routed through a Magistrate under sections 190(2) and 193, Cr.P.C. This is also clear from the simple reading of section 193, Cr.P.C.
10. In view of the above, this criminal revision is dismissed.