1. SAJJAD ALI SHAH, J.--- Through this criminal miscellaneous application, applicant has called in question order, dated 30th July, 2007, passed by the learned District and Sessions Judge, Ghotki, whereby a direct complaint filed by the applicant under section 3 of the Illegal Dispossession Act, 2005, was dismissed on the ground, that since A section- 9 of the Illegal Dispossession Act, 2005, (hereinafter referred to as the "said Act") extends the application of Criminal Procedure Code, therefore, the complaint is to be routed through a Magistrate by resorting to the provisions of section 190(3) of Criminal Procedure Code. It may be noted that after the deletion of subsection (2) by Ordinance XXXVII of 2001 subsection (3) was renumbered as subsection (2).
2. ' Learned counsel for the applicant has contended that per subsection (1) of section 4 of the "said Act" the offences under the provisions of said Act are exclusively triable by the Court of Session, and, therefore, the learned Sessions Judge fell in error by rejecting the complaint of the applicant on the ground of jurisdiction. Learned counsel in support of his submissions placed reliance on the cases Sardar Sajjad Hussain Khan and others v. Habibullah Amir and others 2006 YLR 2686 and Samandar and others v. Haji Abdul Rehman and others PLD 2007 Quetta 72.
3. ' On the other hand, learned Assistant Advocate-General supports the applicant and contends that the order impugned is against the mandate of law and therefore, liable to be set aside.
4. ' I have heard learned counsel for the applicant as well as learned A.A.-G. And perused case-law cited at Bar.
5. ' In order to appreciate the controversy in its true perspective while determining the question of jurisdiction, it would be important to analyze the relevant provisions of "said Act". The first relevant provision being section 2(a) which defines the Court as "Court of Session" likewise subsection (1) of section 4 of the "said Act" directs that notwithstanding anything contained in the Criminal Procedure Code or any law for the time being in force the contravention of section 3 of the "said Act", upon a complaint shall be triable by the Court of Session, whereas section 5 of the said Act provides for the investigation . And procedure in a manner that upon a complaint, the Court may direct the Officer Incharge of the police station to investigate the case and after completion of investigation forward the same within 15 days to the Court, however; such time is, extendable upon showing good reasons. Whereas, subsection (2) of section 5 of the "said Act" 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 and for any delay sufficient reasons shall be recorded and lastly. Section 9 provides for the application of Code in the following terms:-- "Unless otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (V. Of 1898), shall apply to all proceedings under this Act."
6. ' The impugned order reflects that learned Sessions Judge was of the view that since Illegal Dispossession Act, 2005, does not designate the Sessions Court as Special Court to deal with the offences falling under the Schedule to Illegal Dispossession Act, 2005, and, therefore, the, proceedings of the offences relating to Illegal Dispossession Act, 2005, are to be dealt with under the Code of Criminal Procedure, consequently, the complaint is to be routed by resorting to the provisions of section 190(3) of the Code. The observation of the learned Sessions Judge compels the scrutiny of the provisions of section 19Q, Cr.P.C. And specially subsection (2), which is reproduced hereunder for the sake of convenience:--- "190. Cognizance of offences by Magistrates.--- All Magistrates of the First Class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence--
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any Police Officer;
(c) upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion. That such offence has been committed which he may try or send to the Court of Session for trial.
(2) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to Court of Session for trial.
7. ' A bare perusal of aforesaid provisions of law reveals that all the Magistrates of first class or any Magistrate specially empowered may take cognizance of any offence upon receiving a complaint of facts, which constitute such offence or upon a report in writing of such facts made by any Police Officer or upon information received from any person other than a Police Officer or upon his own knowledge and suspicion. Whereas subsection (2) of section 190 of the said Act provides that, where a Magistrate has taken cognizance under the provisions of subsection (1) of an offence triable exclusively by the Court of Session shall, without recording any evidence, send the case to the Court of Session for trial meaning thereby, that the cognizance of the offence has to be taken by the Magistrate before setting up the case for trial before the Court of Session.
8. ' On the other hand section 5 of the "said Act" provides a method for investigation and the procedure of taking of cognizance before commencement of trial, in the following terms:--
5. Investigation and procedure.---(1) Upon a complaint the Court may direct the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court: ' Provided that the Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this subsection.
(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.
9. ' The scrutiny of section 5 of the "said Act" reveals that upon filing of the complaint, the Court (which of course is Court of Session) may direct for holding of preliminary enquiry through an officer- incharge of a particular police station and to submit his report of investigation within specified time and per scheme of law it appears that such investigation is for the purpose of coming to a conclusion as to the genuineness or otherwise of the complaint for the purpose of taking cognizance, and such cognizance is to be taken by the Court of Session and not by the Magistrate as provided under subsection (1) of section 190 of the Code of Criminal Procedure. The very fact that the power of taking cognizance in respect of offences falling under the provisions of the "said Act" has been exclusively devolved upon the Court of Session negates the application of section 190 of the Code of Criminal Procedure. In view of exclusive mandate of the Court of Session to take cognizance and try the offences punishable under the "said Act", the use of the Magisterial Courts as a Post Office, cannot be attributed to the wisdom of Legislature, and therefore, the grievances under the provisions of "said. Act", are to be directly entertained by the Court of Session.
10. ' A similar view was taken by a learned Judge of Lahore High Court in the cage of Sardar Sajjad Haider Khan (supra) by holding that a complaint filed under the provisions of "said Act" does not require to be routed through a Magistrate under section 190(2), Cr.P.C.
11. ' In the circumstances and for the reasons enumerated above, this revision is allowed, order impugned is set aside and the trial Court is directed to entertain the complaint and to decide the same in accordance with law.