1. ' SAJJAD ALI SHAH, J.--- Through this revision application, the applicant has called in question order dated 1st September, 2008, whereby the learned Additional Sessions Judge (South) on complaint of respondent under sections 3 and 4 of the Illegal Dispossession Act, 2005 (hereinafter referred to as "Act of 2005"), directed the S.H.O., Frere Police Station to obtain the vacant possession of the property from the applicant and to hand over the same to the respondent.
2. ' Mr. Khalid Imran learned counsel appearing on behalf of the applicant while narrating the facts has submitted that property bearing No,C-9-A/1, Punjab Colony (276/14 new number) admeasuring 230-45 sq. Yards was originally leased out in favour of J.H. Dias, the real maternal- uncle of the applicant, who entered into an agreement of sale with the applicant in the year 1984 and upon receipt of partial sale consideration handed over the possession of the property to the applicant. The applicant thereafter kept on paying the balance sale consideration in installments.
3. Mr. Dias who is in U.K. Upon receipt of balance sale price sent a registered Power of Attorney in favour of his daughter for the purposes of executing a Conveyance Deed in favour of the applicant, however she instead of executing Conveyance Deed in favour of applicant, executed a Conveyance deed for half of the property i.e. 115 sq. Yards in favour of Miss Julie Liana, the real sister of the applicant. The applicant consequently, filed Suit bearing No,6 of 2003 for specific performance and cancellation of sale-deed. Thereafter, the sister of the complainant Julie Liana sold the property in question to the respondent herein who thereafter moved an application under Order I, rule 10, C.P.C. In the month of February, 2003 to become a party in the said suit. Since similar application was also moved by the present applicant to implead the respondent as defendant consequently, the respondent was joined in the said suit as defendant No,4. The respondent thereafter also filed a suit for possession bearing No,1227 of 2004, both the suits till date are pending adjudication.
4. ' While the suits were being tried, the respondent in March, 2008 filed a complaint under sections 3 and 4 of the "Act of 2005" alleging in para.4 that "after having physical possession of the property under case on 13-1-2003, the complainant started work of construction" and in para.6 that the applicant snatched the possession of the said property from the respondent on 13-1-2003". The trial Court after taking cognizance of the case on the basis of a report called from the concerned police station without taking into consideration the factual position as placed on record by the appellant directed handing over of the said property to complainant.
5. ' It was contended by Mr. Imran that the applicant was in possession of the property since 1984 by virtue of a sale agrement and therefore, the vires of section 3 of the "Act of 2005" was not attracted.
6. It was next contended that in the light of the judgment of the Honourable Supreme Court in the case of Rahim Tahir v. Ahmed Khan and 2 others PLD 2007 SC 423 "Act of 2005" cannot be given retrospective effect in cases where parties were litigating and their cases were pending before different forums, therefore, the retrospective application of "Act of 2005" in the instant case despite pendency of Suits Nos.6 of 2003 and 1227 of 2004 was illegal and in violation of the dicta laid down by the apex Court in the case of Rahim Tahir (supra).
7. ' It was next contended that the complainant has asserted his dispossession on 13-1-2008, whereas has shown his possession uptill 18-1-2008 and such glaring contradiction falsifies the complaint and renders it liable to dismissal.
8. ' On the other hand Mr. Muhammad Ilyas Khan Tanoli, learned counsel for the respondent contended that the respondent was illegally dispossessed but the date of dispossession has been erroneously mentioned in para.6 of the complaint as 13th January, 2003, the respondent therefore, was well within his right to file a complaint under sections 3 and 4 of the "Act of 2005". Mr. Tanoli without disputing the pendency of Suit .No,6 of 2003 against respondent and 1227 of 2004 against the applicant contended that the Supreme Court in the case of Rahim Tahir (supra) has held the application of "Act of 2005" as retrospective and therefore, the order impugned was lawful and maintainable.
9. ' Mr. Asadullah Baloch, learned State Counsel has contended that an order under section 7 of the "Act of 2005" could only be passed once the trial commences i.e: witnesses are examined and since the instant order was passed only on the basis of an inquiry conducted by the S.H.O. Before commencement of trial therefore, is liable to be set aside. In response Mr. Tanoli, learned counsel for the respondent while placing, reliance on the case of Munsif Khan and others v. The State PLD 1960 AJK 45 and Shamsuddin Ahmed v. The State PLD 1960 Dacca 205, has contended that the trial commences on taking cognizance of the offence and since the order impugned was passed after taking cognizance therefore, was sustainable in law.
10. ' Mr. Khalid Imran in rebuttal while supporting the argument of Mr. Baloch contended that section 9 of the "Act of 2005" provide for the application of Code of Criminal Procedure and clause (K) of section 4 thereof defines inquiry as "inquiry includes every inquiry other than a trial conducted under this code by a Magistrate or the Court" which per learned counsel goes to prove that trial is different than inquiry and would commence only once the witnesses are examined. It was further contended that the Legislature by using the words "if during the trial the Court is satisfied" in subsection (1) of section 7 of the "Act of 2005", has placed a restriction upon the power of the Court to grant the interim relief upon preliminary enquiry or at any stage of the case" as provided in sections 249-A and 265-K of Cr.P.C. And, therefore, grant of interim relief before the commencement of trial was unlawful.
11. ' I have heard the learned counsel for the respective parties and have minutely examined the record available before me.
12. ' As to the retrospective application of the Act 2005 I have expressed myself in the case of Captn.
13. S.M. Aslam v. The State PLD 2006 Kar. 221 wherein I have come to the conclusion that since the "Act of 2005", provides punishment of imprisonment upto ten years and fine etc., to a person found guilty of an offence under subsection (1) of section 3 of the "Act of 2005" therefore, it could not be given retrospective application as such construction would be in violation of fundamental rights as guaranteed by the Constitution of Islamic Republic of Pakistan under Article 12 by providing protection against retrospective punishment. Notwithstanding I am bound by the dicta laid down by the Honourable Supreme Court in the case of Rahim Tahir (supra) but in the said case the Honourable Supreme Court has exempted the retrospective application in cases where the dispute regarding possession is already pending before any other forum by observing as follows:--- "The careful examination of the relevant provisions in the Act would reveal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum."
14. ' In the instant case it is an admitted position that a suit bearing No,6 of 2003 for cancellation of sale-deed and specific performance was pending before the 1st Senior Civil Judge at Karachi since 2003, wherein the respondent/complainant was a party and was contesting the same, the respondent/complainant had also filed a Suit bearing No,1227 of 2004 against the applicant accused which was also pending adjudication. The respondent as it appears from the record had also filed a Criminal Complaint bearing No,590 of 2005 against the respondent which was withdrawn on account of pendency of aforesaid civil suit, in the circumstances the retrospective application of the "Act of 2005" was totally against the dicta laid 'down by the apex Court in the case of Rahim Tahir (supra). It is pathetic that the trial Court despite reproduction of the relevant portion from the judgment of the Honourable Supreme Court in the case of Tahir Rahim (supra) failed to distinguish the instant case on account of pendency of abovesaid cases before competent forum.
15. ' Notwithstanding it further appears that the trial Court appeared to be in haste to dispossess the applicant and had failed to appreciate that in para.4 of the complaint the respondent/complainant had submitted:--- "after having physical possession of the property under case, on 13-1-2003, the complainant started some construction/ renovation/repairing work." ' and thereafter stated that the applicant/accused came to his place quarreled and the report of occurrence was made by the respondent/ complainant to the concerned police station, copy whereof has been produced as Annexure "C". Likewise in the same para. The complainant further submitted.
16. "Not only this but again on 18-1-2003, where the construction work was being done the accused once again tried to create law and order problem, for which the complainant lodged report." ' copy whereof has been produced as Annexure "C/1". Thereafter, in. Para.6 of the respondent/applicant has stated:-- "On 13-1-2003 at 9-30 p.m. While committing act of criminal trespass, unauthorisedly, unlawfully snatched possession thereof from the complainant and have evicted him therefrom unlawfully."
17. Despite such glaring contradiction in the complaint the trial Court hurriedly upon calling report from the concerned S.H.O. Directed the eviction of the applicant/accused without applying its mind or seeking a clarification that if the respondent/complainant was in possession of the property till 18-1-2003, then how could he be dispossessed on "13-1-2003 at 9-30 p.m." As to the submission of Mr. Tanoli that the date of dispossession viz. 13-1-2003 "at 9-30 p.m." has been erroneously mentioned in the complaint appears to be incorrect as I have perused the police report on the basis whereof impugned order was passed, recording statement of various witnesses including complainant (at page 219 of R&P) which reflects that the respondent/complainant even stated before the police that he was dispossessed on 13-1-2003 and further that no such clarification was furnished before the trial Court. This contradiction renders the complaint highly dubious and liable for dismissal.
18. ' Taking up the question as to at what stage the trial Court can grant interim relief under subsection
(1) of section 7 of the "Act of 2005" by directing a person prima facie not in lawful possession to put the owner or occupier as the case may be, in possession. The text of subsection (1) of section 7 of "Act of 2005" read as follows:--- "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."
19. ' A minute perusal of subsection (1) of section 7 of the "Act of 2005" reveals that the satisfaction of the Court regarding a person prima facie not in lawful possession should be based on the facts which transpire during the trial, now the question arises as to when the trial commences, per Mr. Asadullah Baloch, learned State Counsel trial begins from the stage of evidence, whereas according to Mr. Tanoli, learned counsel for respondent trial commences upon taking of cognizance. There is no provision either in the "Act of 2005" or in the Code of Criminal Procedure defining trial or providing time for its commencement. Since section 9 of the "Act of 2005" provides for the application of Criminal Procedure Code and "Act of 2005" does not provide any procedure for trial, except by way of section 5 which only provides that once the Court has taken cognizance it shall proceed with the trial day to day, therefore, resort has to be taken to Chapter XXII-A of the Criminal Procedure Code defining Procedure in cases triable by the High Courts and Courts of Session and subsection (2) of, section 265-C thereof relates to the procedure in cases instituted upon a complaint, whereas section 265-D pertains to the framing of the charge.
20. ' A perusal of clause (b) of subsection (2) of section 265-C reflects that copies of complaint along with other documents, if any, is to be provided to the accused not ,later than seven days before the commencement of trial. However, it could not be construed that the trial would commence after seven days from the supply of the copies of complaint etc., as the copies of complaint etc., could be supplied even a month before the commencement of trial, but not later than seven days, meaning thereby that the trial commences at some point after the appearance of accused in consequence to the summonses, notices, warrants etc., issued after taking the cognizance, so it can safely be concluded that trial does not commence upon taking the cognizance.
21. ' On the other hand after taking cognizance, effecting the appearance of accused, acquainting him with the allegations by supplying him the copies of complaint etc., the Court for the first time after examining the entire material placed on record under section 265-D applies its judicial mind to ascertain as to whether there is any ground to put the accused on trial and if it comes to the conclusion that there is ground for proceeding with the trial of the accused it causes his attendance and frames a charge which is read out in Court and explained to accused so that he - can defend himself. Thus, it makes abundantly clear that the trial commences from framing of charge. Even in the case of Munsif Khan (supra) it was held that in a case triable exclusively in a Court of Sessions, the trial begins only after the charge is framed. As to the distinction drawn between the commencement of trial in summons and warrant cases, the same is inapplicable after the introduction of Law Reform Ordinance, 1972, whereby the procedure of the trial of summons and warrant cases was omitted and that portion of the judgment has become obsolete.
22. It is also important to observe that the main purpose of "Act of 2005" is to curb the activities of land grabbers and to protect the rights of owners and lawful occupants. However, its application to the person having no connection with the property grabbers must be with great caution and that's why the Legislature in his wisdom has instead of empowering the Court to grant interim relief at any stage of the case has restricted it to a stage when the Court after going through the material available before it comes to conclusion that there is sufficient ground for proceeding with the trial of the accused. In the circumstances I am of the view that the powers for granting- interim relief under the provision of subsection (1) of section 7 can only be exercised after framing the charge and not before that.
23. ' In view of what has been discussed above this revision succeeds, order dated 1st September, 2008 is set aside. Since the possession of the property was obtained by S.H.O. Frere Police Station from the applicant and was handed over to the respondent, therefore, S.H.O. Frere Police Station is directed to restore the possession of the property bearing No,C-9/1, Punjab Colony, Karachi (New No,276/14, admeasuring 130 sq. Yards) to the applicant forthwith and submit compliance report within seven days.