' MUNIB AKHTAR J.--- This application under section 561-A, Cr.P.C., raised a short but interesting point regarding the Illegal Dispossession Act, 2005 ("2005 Act"). The respondent No,1 filed a complaint with the IInd Additional Sessions Judge, Khairpur against the applicants claiming that he and certain other persons were co-sharers in the property identified in the complaint. The allegation was that the applicants had unlawfully dispossessed the respondent No,1 and his co- sharers from the property and had illegally grabbed the same. The respondent accordingly sought relief from the Court under the 2005 Act..
2. It appears that the learned trial Court called for reports from the concerned SHO and Mukhtiarkar upon receipt of the said reports and consideration of the statement made by the complainant (i,e, the present respondent No,1), the Court, by means of an order dated 7-9-2009 held that prima facie, a case had been made out under sections 3 and 4 of the 2005, Act and ordered notices to be issued to the accused (i,e, the present applicants) to appear before the Court and furnish security in the manner and amount as set forth in the order. It is this order which is impugned by the applicants by means of the present application.
3. Learned counsel for the applicants submitted that the impugned order was unlawful inasmuch as the mandatory provisions of the 2005 Act had not been complied with. In particular he submitted that it was a mandatory requirement that an investigation be ordered by the Court, and carried out by the concerned SHO, in terms of section 5(1) of the 2005 Act. This had not been done, and the report called from and made by the SHO, as referred to above, was not an investigation for the purposes and within the meaning of section 5(1). He submitted that the impugned order was therefore unlawful and liable to be set aside. He relied on Zahoor Ahmed v. Abdul Aziz and others 2007 PCr.LJ 1881 and Rahim Tahir v. Ahmed Jan and others 2007 PCr.LJ 1920. He further submitted that there was in fact some civil litigation going on in respect of the property in question and that in such circumstances, proceedings under the 2005 Act were unwarranted. In this regard, he placed reliance on Rana Shafique Ahmed v. Additional Sessions Judge, Lahore 2008 YLR 2259.
4. Learned counsel for the respondent No,1 submitted that the correct procedure had been followed and adopted by the learned trial Court and that the impugned order did not suffer from any legal infirmity. He submitted that the provisions of section 5(1) were directory and not mandatory. He also challenged the maintainability of the application and submitted that it was not a fit case in which the order of the trial Court called for interference by this Court under section 561-A Cr.P.C. He relied on Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298. The learned A.P.-G.
Submitted that the procedure adopted by the trial Court was lawful and that the Code of Criminal Procedure applied to proceedings under the 2005 Act.
5. The 2005 Act is a short enactment comprising of only 9 sections. Like all statutes, it has to be read as a whole and for present purposes, which relates to a determination of the procedure to be adopted by the Court exercising jurisdiction under the statute one must begin with section 9 which provides as follows:--- "Unless otherwise provided in this Act the provisions of the Code of Criminal Procedure 1898 (V of 1898) shall apply to proceedings under this Act."
' The meaning and effect of this section is clear. It is a mandatory provision and requires the Court exercising jurisdiction under the 2005 Act to follow the procedure laid out in the Cr.P.C. In all matters, unless in respect of any particular matter, there is a specific procedure laid out in the Act itself. If so, then that procedure is to be followed if it is inconsistent with the procedure laid out in the Cr.P.C. In my view, even if a matter is dealt with specifically in the 2005 Act an attempt should be made in the first instance to read that provision consistently with the Cr.P.C. And apply it accordingly. It is only if the two relevant provisions (the one in the 2005 Act and the one in the Cr.P.C.) cannot at all be read consistently that the provision in the 2005 Act is to be applied in disregard of the provisions of the Cr.P.C.
6. The second point to note about the 2005 Act is that it does not create any special Court or forum but simply defines in section 2(b), the "Court" as meaning the Court of Session sections 4 and 5 provide as follows:--- "4. Cognizance of offence.--- (1) Notwithstanding anything contained in the Code or any law for the time being in force, the contravention of section 3 shall be triable by the Court of Session on a complaint.
(2) The offence under this Act shall be non-cognizable.
(3) The Court at any stage of the proceedings may direct the police to arrest the accused.
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 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."
7. Section 4(1) contains a non obstnate clause and expressly provides that an offence under section 3 (i,e, the offence of illegal dispossession) shall be triable by the Court of Session on complaint. In my view, this confers an original jurisdiction on the Court of Session. In this context, it is relevant to note section 193(1) of the Cr.P.C., which provides as follows:--- "Except as otherwise expressly provided by this Code or by any other law for the time being in force 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 subsection (2)."
' Thus both under the Cr.P.C. And the 2005 Act the Court of Session has original jurisdiction to itself directly take cognizance of an offence under section 3 of the latter statute, and to do so by way of a complaint.
8. The procedure to be followed by the Court in complaint cases up to (and before) trial under Cr.P.C. Is well-established. The only question is whether that procedure or any part thereof has been displaced by any provision of the 2005 Act. As already noted, by reason of section 9, while interpreting and applying a proviso of the 2005, it should, if at all possible, be read and applied in a manner consistent with the Cr.P.C. The specific question before me is whether section 5(1) can be so read and applied. The first point to note about section 5(1) is that it uses the word "may" and not "shall". At first sight it would therefore appear to be directory and not mandatory. While it is true that in some cases, depending on the statutory context the word "may" has been interpreted as meaning "shall" (and vice versa), I am not satisfied that the case at hand requires such an interpretation. In my view, section 5(1) is an enabling provision, which confers a power on the Court to, if it so deems appropriate, direct the SHO concerned to carry out an investigation and make a report thereon to the Court within' the stipulated period. The use of I he mandatory "shall" in section 5(2) lends further support to the view than: the "may" in section 5(1) should be read as directory; the use of two contrasting words in the same section indicates that this was a deliberate legislative choice. In this context, reference can also be made to section 202, Cr.P.C., which provides as follows:--- '`202 Postponement of issue of process.--- (1) Any Court on receipt of a complaint of an offence of which it is authorized to take cognizance, may, if it thinks fit, for reason to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case itself or direct any inquiry or investigation to be made by any Justice of the Peace or by a police officer or by such other person as it thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint: ' Provided that save, where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of section 200.
(2) A Court of Session may, instead of directing an investigation under the provisions of subsection (1), direct the investigation to be made by any Magistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint.
(3) If any inquiry or investigation under this section is made by a person not being a Magistrate or Justice of the Peace or a Police Officer such person shall exercise all the powers conferred by this Code on an officer-in-charge of a police station except that he shall not have power to arrest without warrant.
(4) Any Court inquiring into a case under this section may, if it thinks fit, take evidence of witnesses on oath."
' Section 202 is itself a directory provision, which enables the Court taking cognizance of a complaint to conduct (or have conducted) an inquiry or investigation and subsection (2) specifically empowers a Court of Session to have an investigation carried out by a Magistrate.
However, it is to be noted that the remit of such an inquiry or investigation is limited to "ascertaining the truth or falsehood of the complaint" The provisions of section 5(1) are broader, and empower the Court to have the matter investigated for any purpose as may relate to the complaint and be germane or relevant under the 2005 Act. In my view when section 202, Cr.P.C. And section 5(1) of the 2005 Act, are considered and read together, the legislative intent behind the later provision is clear. Both are directory and enabling and not mandatory provisions. The scope of section 202 is somewhat limited even though it confers a specific power (under subsection (2)) on the Court of Session to have the investigation carried out by a Magistrate. The enabling provision of section 202 of course remain available to the Court under the 2005 Act by virtue of section 9. Now in addition thereto a further power has been conferred on the Court by means of section 5(1) to have if the Court so deems appropriate, an investigation carried out by the SW) concerned in respect of the complaint on any matter as may be relevant or germane for purposes of the 2005 Act (and not only for the purposes as laid down in section 202, Cr.P.C.).
9. Once the Court has issued process to the accused (which under the 2005 Act would require the application of section 204 Cr.P.C., then section 5(2) requires that the Court proceed expeditiously with the trial. The manner of a trial by a Court of Session on a complaint is laid out in section 265- C(2), Cr.P.C. Read with the other sections of Chapter XXII-A and it is this procedure that is to be followed under the 2005 Act.
10. The case-law relied on by learned counsel for the applicants does not assist him. In Zahoor Ahmed, a complaint under the 2005 Act was dismissed by the trial Court on the ground that it could not be filed directly before the Court of Session but had to be routed through the concerned Magistrate. This Court allowed a revision against that order holding that a complaint under the 2005 Act could be entertained directly by the Court of Session. This case therefore confirms the view of the 2005 Act taken by me herein above. The second case Rahim Tahir is also a decision of this Court. However, it involved a different point altogether and clarified that the scope of proceedings under the 2005 Act are limited only to question of illegal dispossession and not title or the authenticity of title documents for which a civil Court and civil proceedings are the appropriate forum. The issues involved in Rana Shafique Ahmed (a decision of the Lahore High Court) were of a similar nature and this decision is also therefore not germane to the issue at hand.
11. In view of what has been stated above I hold that section 5(1) of the 2005 Act is directory in nature. It is not mandatory for the Court to have an investigation conducted under that provision before proceeding further in the matter. The impugned order does not therefore suffer from any illegality on that count. Because of the view that I have taken of the matter it is not necessary for me to consider the question of the maintainability of the present applicant. The application being without merit, is hereby dismissed.