1. ' MEHTA KAILASH NATH KOHLI, J.---This petition is directed against order dated 3rd March, 2008, passed by learned Additional Sessions Judge-II, Quetta in case No, 9 of 2007, whereby; application under section 7 of Illegal Dispossession Act, 2005 has been directed to be dismissed.
2. ' Facts of the case, in brief, are that a complaint under sections 3, 4 of Illegal Dispossession Act, 2005 was filed in the Court of Session Judge Quetta, which was transferred to the file of Additional Sessions Judge-II, Quetta, who had forwarded the same for enquiry/investigation to the concerned Police Station; Enquiry Officer vide report dated 16th July, 2007 gave his finding that the ownership vests with the petitioner, who is widowed lady having three children. Cognizance in the matter was taken and challan of the case was submitted before the competent Court of law for trial. Along with complaint application under section 7 of the Illegal Dispossession Act, 2005 was filed, which was dismissed vide impugned order dated 3rd March, 2008. Against aforementioned order, present petition has been filed. Notice of this petition was given to the respondent, in reply whereof; agreement dated 12th August, 2006 has been placed on record, wherein; plea was taken that this property was sold in consideration of Rs,18,50,000 and it is also stated that a sum of Rs,10,00,000 are already paid in cash.
3. ' Since the signature on the stamp paper could reasonably be judged by a man of ordinary prudence and thus; there was no hesitation after comparing the disputed signatures with admitted signatures to hold that those were fictitiously made. Notice was also issued to the Petition Writer to produce the original record, so that the Court may examine the a,thenticity of alleged document. Syed Rafique Ahmed, Petition Writer has appeared and stated that record has been destroyed in the incident of 17th February, 2007 and he cannot produce the same, however, he stated that this document was drawn in the year 2006, but he cannot identify the lady present in the Court. He also did not recall that as to whether a sum of Rs,10,00,000 was paid or otherwise.
4. ' Mr. Nizam-ud-Din Kakar, learned counsel for petitioner has very candidly submitted that petitioner is a widowed lady and is a house wife; after the death of her husband, she had gone to Karachi along with her minor children and had closed the house. It was further stated that the respondent has forcibly opened the door and house was occupied forcibly. Mr. Mujeeb Ahmed Hashmi, learned counsel for respondent was confronted with the said position: he had relied on the document, which is allegedly executed on 12th August. 2006 and stated that a sum of Rs,10,00.000 was paid. It was further contended that civil suits have been filed by both the parties, and thus; this petition should not be entertained.
5. ' I have considered the arguments advanced by learned counsel for the parties and perused the record. In Holy Qur'an in Surrah Baqarah, Verse No,220, it is the commandment of Al-Mighty Allah to protect the rights of orphans:-- "In (to) this worldly life and in the Hereafter . And they ask you concerning orphans. Say: "The best thing is to work honestly in their property and if you mix your affairs with theirs, then they are your brothers. And Allah knows him who means mischief (i,e, to swallow their property) from him who means good (i,e, to save their property). And if Allah had wished. He could have put you into difficulties. Truly,Allah is All-Mighty, All-Wise. Verse No,220; Surrah II (AlBaqarah). "
6. ' It is the primary duty of the courts, as well as, the State to A protect the rights of widows and orphans and they should not be let alone. Section 7 of the Illegal Dispossession Act, 2005 authorizes the Court to conclude that the person prima facie is not in lawful possession; B section 7(1) of Illegal Dispossession Act, 2005 is reproduced hereinbelow:--
7. Eviction and mode of recovery as an interim relief.--(1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession."
7. It appears from the perusal of record that this document (sale agreement) was coined at a later stage and it was never put into investigation nor produced before the Investigating Police Officer, as such; it appears that the plea is afterthought. Though document is allegedly executed on 12th August, 2006, but from the perusal and examination of the document, it appears to be brand new document and prima facie the signatures are not tallying with the original signatures of petitioner on record. It is also not acceptable that such a huge amount of rupees ten lacs could have been transacted in cash. It has been found that some fraud has been played. Definition of owner has been provided by section 2(d) of Illegal Dispossession Act, 2005, which clearly contemplates that an owner recorded in the revenue record shall be deemed to be the owner for the purpose of illegal dispossession. Section 2(d) is reproduced hereinbelow:-- "2(d) "Owner" means the person, actually owns the property at the time of his dispossession, otherwise, than through a process of law."
8. Reverting to the provisions of sections 3 and 4 of the Illegal Dispossession Act, 2005, two persons have been defined, who can approach the Court of competent jurisdiction for enforcement of said law; (i) owner and the other is (ii) occupier. As pointed out, the owner must be recorded owner and the second question arises as to whether an occupier or a trespasser is protected under the law. It is to observe that a lawful occupier is protected under the said law and not a trespasser. In the judgment reported in the case of Mst. Bor Bibi and others v. Abdul Qadir and others 1996 SCM R 877, their Lordships of the Hon'ble Supreme Court of Pakistan were pleased to conclude that mere execution of agreement would not be sufficient for declining the eviction proceedings, which were pending before the Apex Court; relevant observations are reproduced herein below:-- "8 He has referred to various authorities in that respect and has come to the conclusion that a tenant cannot be allowed to retain his possession on such agreement till decision of their title by a Civil Court of competent jurisdiction. We do not find any defect with his observations and conclusion. The factum of the default of the payment of the rent and the requirement of the landlord has been proved. We have neither been persuaded nor satisfied that any defect lies with the judgment of the Judge in Chambers of the High Court which may call for interference of this Court in its appellate jurisdiction."
9. On perusal of record, I am of the considered opinion that the petitioner has made out a prima facie case entitling her to the interim possession under section 7 of Illegal Dispossession Act, 2005. S.H.O.
10. Police Station Brewery is directed to put the petitioner into premises today positively, however; the parties are at litigation, which may continue and this decision shall be subject to final decision in the civil suits pending between the parties.
11. ' It is also to observe that criminal proceedings and civil litigation independently could proceed by the courts of competent jurisdiction.
12. ' Registrar of this Court is directed to retain this original document i,e, agreement and original notice, which shall be transmitted to Additional Sessions Judge-II, Quetta for enquiry and sending onward the same to the handwriting expert. The petition writer is warned to be careful in future.
13. ' These are the reasons of short order made in the Court on even date.