For the order I propose to pass to this case, I will not be referring to the facts in much detail. Suffice it to say that on 21.1.2006 the Respondents No, 1 and 2 filed a complaint (Annex-D) under Section 3 of the Illegal Dispossession Act, 2005, against Ghulam Yasin, Bilal and 40 unknown persons alleging that they have been dispossessed on 11.12.2005. The learned ASJ, Dera Ghazi Khan, in the first instance sought a report from the local police which was filed. Thereafter, he appointed a Local Commissioner who filed his report. Vide order dated 13.3.2006 he proceded to direct that the SHO, P.S. Saddar, Dera Ghazi Khan, to get vacated the plot in question from the respondents in the case and delivered to the complainants on or before 15.3.2006.
2. Learned counsel for the petitioners contends that apart from the factual and legal objections which he has to raise before the learned ASJ, the impugned order could not have been passed as the trial has yet to commence. Learned counsel for Respondents No, 1 and 2 has tried to support the impugned order with reference to Section 7 of the said Act, 2005.
3. I have gone through the copies of the records. Now I find that the complaint was filed on 21.1.2006.
The statement of the complainant was recorded on 24.1.2006 and thereafter a report was called from the SHO concerned. This report was ultimately filed on 21.2.2006. Learned counsel for the complainants expressed dissatisfaction. It was directed that an officer of the DSP rank should file a report. It appear that this order was not complied with. Ultimately, on 8.3.2006, Malik Ghulam Mustafa, Advocate, was appointed as a Local Commissioner. His report was filed on 10.3.2006 while on 13.3.2006 the impugned order was passed. Now it is well settled that a criminal trial commences when the accused persons have been summoned and a charge has been framed in the case.
Reference be made to the case of Haq Nawaz and others v. The State and others (2000 SCM R 785).
Now it is a matter of record that neither the accused persons have been summoned and there is no question of framing, charge and neither one has been framed. This being so, the condition precedent for passing of an order under Section 7 of the Illegal Dispossession Act, 2005 i,e, "during the trial" does not exist. The impugned order, therefore, is wholly without lawful authority and is accordingly set aside. The result would be that the matter shall be deemed to be pending. After the commencement of the trial in the manner stated above, the learned ASJ can take up the matter of passing of an interim order and decide the same after hearing all concerned.
Disposed of.
4. A copy of this judgment be immediately remitted to the learned ASJ, Dera Ghazi Khan.