1. ' MRS. SYEDA TAHIRA SAFDAR, J.---The petitioners being aggrieved of order made on 6-3-2006 by District and Sessions Judge, Loralai, whereby the complaint filed by him under Illegal Dispossession Act 2005, was dismissed, preferred present petition with contention that trial Court misappreciated the facts and misapplied the law thereby draw conclusion which is neither legal, nor tenable under the law. Further, the report submitted by S.H.O. Has been overlooked by the trial Court. Though, the respondents failed to produce any document in their favour, but the trial Court failed to consider this aspect of the case. The respondents after dispossessing him excavating coal from the disputed area and selling the same without any license or permit. They being victim be compensated in accordance with section 544, Cr,P.C. And section 3(2) of Act 2005, but the trial Court failed to do so, further, made error while holding that civil litigation is pending between the parties. Rather the petitioner is unlawfully and illegally dispossessed from the mines area in question in month of September 2005, as such the remedy provided as per special law, cannot be deprived of the same. The award dated 17-8-1973 is misinterpreted and misconstrued by the trial Court, as the same does not give any right of mining in favour of respondents. The petitioner has prayed for setting aside of impugned order, and possession of area in question be restored to him and respondents be punished in accordance with law.
2. ' The perusal of the record reveals that a complaint under provisions of Illegal Dispossession Act, 2005 was filed by the petitioner on 21-10-2005 before the Court of District and Sessions Judge, Loralai, whereby the petitioner claimed himself to be lease holder of area, and excavating coal from the same. While the respondents are asserted to be residents of nearby area. It has been alleged therein that about a month ago, the respondents without any legal authority started illegal mining operation in said leased area of Kala Khan Tareen Company (petitioner) thereby grabbed the leased area without having legal right for doing so. The petitioner has prayed for dispossession of respondents from the area and restoration of the same to him, while restrained the respondents from doing so, thereby obtaining heavy surety and they be punished for the offence. The respondents in reply strongly contested the averments made by the petitioner. According to them, matter in dispute is of civil nature, while a civil suit is already pending between them in the Court of Senior Civil Judge, Loralai. They further asserted that after grant of lease a dispute arose between the parties, which was settled by the Tribunal in year 1973, award was obeyed in all these years, but it was violated in 2004, whereupon they filed a civil suit. They prayed for dismissal of complaint. The trial Court on receiving complaint sent it to concerned S.H.O. For investigation of the matter, who submitted his report dated 11-11-2005. The trial Court after hearing the parties dismissed the complaint through order made on 6-3-2006, which is presently impugned before this Court.
3. ' During course of arguments, the learned counsel for the petitioner contended that the provisions of Criminal Procedure Code are fully applicable in the proceedings held under Illegal Dispossession Act 2005, therefore, the trial Court is bound to adopt the procedure provided therein. Further, the civil suit has already been dismissed. Furthermore, mere on ground of filing of civil suit complaint cannot be rejected. In rebuttal, it is contention of counsel for respondents Nos.1 to 5 that when civil suit is pending, proceedings under this Act are not maintainable. Further, as per this Act calling and recording of evidence is not mandatory, rather if the trial Court consider it necessary evidence can be called. Learned State counsel relied on arguments made by counsel for respondents Nos.1 to 5.
4. ' The petitioner is aggrieved of dismissal of his complaint filed against the respondents.
5. ' The complaint was made under provisions of the Illegal Dispossession Act 2005, as it is a special law, therefore, it will prevail over the B general law. While the proceedings effected thereon are required to be in consonance with the provisions of said Act of 2005. Section 5 of the Act describe the procedure required to be adopted by the Court taking cognizance of the matter. The section speaks as under:- ' Investigation and Procedure:--
(1) Upon a complaint the Court may direct the officer-in-charge of a Police Station to investigate and complete the same within fifteen days to the Court.
(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".
6. ' Whereas, section 3 provides the nature of the offence triable under this Act and also provides the punishment for the offence committed thereon, which is reproduced as under:- "Prevention of illegal possession of property etc,-
(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property;
(2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provisions of section 544 of the Code".
7. ' Thus keeping in view of the same any person in capacity of either owner or occupier can apply the Court in respect of commission of the offence in result thereof he had been dispossessed or put out of control or occupation of the property in question. The complaint filed by the aggrieved person is required to be entertained by the Court of Session being the competent Court as per section-4 of the Act, while adopting the procedure as provided in section 5 of the Act as mentioned above. While as per section-9 the provisions of Code of Criminal Procedure shall apply to all proceedings under this Act, unless otherwise provided. Keeping in view the above mentioned section on receiving of complaint the Court may direct the officer in charge of a Police Station to make investigation and submit his report. While as per subsection (2) of section-5 after taking cognizance of the case the Court shall proceed with the trial from day to day and shall decide the case within sixty days. The procedure of trial is not provided in the Act, in such circumstances the procedure which is required to be adopted as provided in Criminal Procedure Code. Sections 265- B to 265-N provide the procedure required to be observed by the Court of Session in trial of cases.
8. ' As per record in present case on filing of complaint by the petitioner, the concerned S.H.O, was directed for conducting of inquiry and submitting of report, who submitted the report dated 11-11- 2005. On receipt of the same the trial Court after hearing counsel for the parties decided the complaint through order made on 6-3-2006, which is presently impugned before this Court. The perusal of record reveals that the trial Court after receiving of report from S.H.O, did not consider it necessary to call any other evidence, rather simply decide the complaint relying on the report. The perusal of this report reveals that the same is not a conclusive and final report, rather it is an interim report, as it is mentioned therein that up till receiving report of Revenue Department and demarcation of the property no final report can be given. It is the main contention of the counsel for the petitioners that the Court was required to frame charge, record evidence, whereafter, decide the complaint, as the trial Court failed to observe the procedure therefore, impugned order is liable to be set aside. Though on institution of cases either on police report or on complaint in writing after supplying of copies of statements and documents or complaint to the accused person, Court is required to frame charge, but a discretion is provided therein which is required to be exercised by the Court before framing of charge. Section 265-D speaks as under :- "265-D. When charge is to be framed. If, after perusing the police report or , as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceedings with the trial of the accused it shall frame in writing a charge against the accused".
9. ' As per the same the trial Court has to consider the material before framing of the charge, whereafter, commence with the trial. In present case, the trial Court only called investigating report from the relevant S.H.O., thereby decide the matter, no charge is framed, nor any witness is called.
10. Now the point which is required to be consider that whether the trial Court exercised its discretion or formed its opinion on materi'al present on record, or otherwise.
11. ' The petitioner claimed himself to be in possession of plot in question, wherein the respondents are making interference, while excavating coal. There is denial from the other side. The respondents filed several documents on record, notice whereof was given to the counsel for the petitioner, who did not contest or rebut the same. The perusal of these documents reveals that in past some dispute arose between the parties which was decided through order dated 17-8-1973 made by Assistant Commissioner Duki- Sinjavi, which is an admitted fact. It is further apparent from these documents that a civil suit was filed by the respondents in year 2004, which was contested by the other side. What was the fate of this suit there is nothing on record. It is further apparent from record that a constitutional petition was filed by one Mst. Nasira wife of Mir Haji Tareen, which was also in respect of some dispute pertaining to property/mining lease No, ML-53 (1988) measuring
333. 54 acres. The said petition was filed in year 2005, while the same was dismissed for non- prosecution through order made on 23-6-2005 by this Court.
12. From all above mentioned documents/facts this can easily be presumed that dispute in respect of property and mining is pending between the parties since long. Both the parties are litigating before different forums, what was result of the same no specific order is placed on record. The settlement of title and possession thereof is out of scope in proceedings initiated under Act of 2005.
13. Thus the decision in respect of title and ownership has less bearing on proceedings pending under provisions of Act of 2005. Rather, the only fact which is required to be considered and decision is to be given to the effect of possession of the aggrieved person, which is disturbed by the other side without any lawful excuse. In present case though the petitioners claimed themselves to be in possession of property in question, while asserted occupation of the area by the respondents, who started excavation of coal from the same one month from the complaint. But neither in the complaint, nor in present petition the exact date of dispossession is disclosed. Secondly, the area from which they (petitioners) are dispossessed is not mentioned in the complaint, exact measurement is not disclosed anywhere, nor the boundaries are specified in the complaint. As the leased area as per his own showing is about 333. 54 acres. It is not their case that they have been deprived of the whole area leased in their favour. In view of the same property in question is unspecific. Further, the suit and constitutional petition were filed which remained pending before filing of this complaint, thus the petitioner was well aware about the act of the respondents. Despite the same he remained silent for more than one year, whereafter, filed the instant complaint. The learned counsel for the petitioner failed to assign any reason for such a delay. A rapid remedy is provided under this Act, which is required to be availed in time. Surely litigation is pending between the parties on civil and revenue side, the rights are to be ascertained by the concerned Courts under relevant law, which cannot be interfered in present proceedings. The trial Court, with some reservation, comes to the right conclusion.
14. ' The petitioner has failed to make out any case in his favour. The petition is dismissed being without merits.