MIAN FASIH-UL-MULK, J.---Petitioners, Waqar Ali and others by filing this constitutional petition have impugned order, dated 15-7-2009 passed by learned Additional Sessions Judge, Haripur on a complaint made under section 3 of the Illegal Dispossession Act, 2005 by the respondent No,2, who, whereby while finding the complaint primea facie maintainable took cognizance and directed the petitioners to submit their bonds for attendance.
2. Brief but relevant facts giving rise to the instant petition are that after filing the complaint by respondent No,2, the same was sent for investigation twice to the local police but the investigation did not cover the disputed khasra number and instead only the property owned by the respondents (petitioners herein) was taken into consideration for making the final opinion of investigating officer. Finally, the Additional Commissioner, Hazara, was appointed as a local commissioner for investigation and report. The complaint was to the effect that the respondents Nos. 1 to 3 (petitioners herein) have illegally and forcibly encroached upon and grabbed his landed property to the extent of 17 kanals 6 marlas out of land measuring 30 kanals 6 marlas comprising various khasra numbers situated in village Khanpur, Tehsil and District Haripur. The petitioners objected to the maintainability of complaint which question was decided by the learned Additional District Judge-III, Hairpur, after receipt of investigation report from the local Commissioner vide impugned order, dated 15-7-2009.
3. Learned counsel for the petitioners contended that petitioners are in possession of their purchased land measuring 150 kanals and no occurrence, as alleged in the complaint, has taken place which fact is also established from the investigation reports of local police. It was further argued that the contents of complaint even did not disclose any date on which, allegedly the complainant was dispossessed nor there are any allegation of using force; that the report of local commissioner is not admissible as the same is recognized by the Illegal Dispossession Act, 2005; that at the most it can be termed a case of encroachment, which issue, cannot be resolved in summary proceedings as envisaged in Illegal Dispossession Act, 2005 but could only be called in question before the Civil Court. Learned counsel while relying on PLD 2007 Peshawar 123 and PLD 2007 Lahore 231 prayed that the impugned order, dated 15-7-2009 being illegal, without lawful authority and without jurisdiction may be set aside and the complaint filed by respondent No,2 be dismissed.
4. On the contrary, learned counsel for the complainant/respondent No,2, on pre-admission notice, contended that the impugned order, dated 15-7-2009 being interlocutory in nature cannot be questioned in constitutional jurisdiction of High Court. Learned counsel defended the impugned order even on merits and referred to the case-law on the subject.
5. We have heard learned counsel for the parties at length and gone through the available record annexed with the petition,
6. After hearing the learned counsel for the parties, it has been observed that the impugned order is not final which could be challenged in the constitutional jurisdiction and in this sense the petition is premature. This view gets support from the case reported as Abdul Majeed v. Noor Muhammad and 2 others (PLD 2006 Lahore 649), Ghulam Ali and others v. Nasira Malik and others (2007 PCr.LI 224).
7. The august Supreme Court of Pakistan in the case of Muhammad Akram and 9 others v.
Muhammad Yousaf and another (2009 SCMR 1066) has held in the following words:-- "In order to constitute an offence under section 3(1) of the Illegal Dispossession Act, 2005, the complainant is to allege and show before the Court:-
(i) That the complainant is the actual owner (or occupier i.e, in lawful possession) of the immovable property in question,
(ii) That the accused has entered into (or upon) the said property,
(iii) That the entry of the accused into (or upon) the said property is without any lawful authority.
(iv) That the accused has done so with the intention to dispossess (to grab or to control or to occupy) the property of complainant. The defence line for the accused can be:--
(1) that the complainant is not the actual owner of the property,
(2) that the entry of the accused into the property is not to dispossess the complainant,
(3) that the accused has the lawful authority to enter into the property,
(4) that the accused had no intention to dispossess the complainant.
' The law has made it clear that a person who is proved guilty shall not be saved from the punishment for which he may be liable under any other law for the time being in force, The provisions of section 3(2) is salutary and mandatory. It is with the purpose to alleviate the suffering and is also effective deterrent against crime. The Legislature had taken full care to close all doors of any injustice to the parties".
' Keeping in view the dictum laid down by the august Supreme Court, the trial Court has rightly held the complaint, prima facie, maintainable.
8. Now coming to the case-law cited by the petitioners, suffice it to say that the same are distinguishable and not applicable to the case in hand. In the case of Fazal Karim v. State and 10 others (PLD 2J07 Lahore. 231) the parties were co-sharers in the same khewat and at the time of institution of the complaint under section 3 of the Illegal Dispossession Act, 2005 Civil Court was already seized of the dispute between the parties regarding property in issue. Similarly, in the case of Yasaf v. State and others (PLD 2007 Peshawar 123) the case was not taken to the High Court in its constitutional jurisdiction against an interim order but the question of maintainability of appeal after conviction of the accused under section 3 of the Illegal Dispossession Act, 2005 was adjudicated upon by the High Court where it was held that since the special statute did not provide for appeal, appeal under section 410, Cr.P.C. Was held to be an appropriate remedy.
9. In the instant case the learned trial Court has taken cognizance of the matter and after recording pro and contra evidence it has to decide the complaint on its merits and strictly in accordance with law. The Illegal Dispossession Act, 2005 is a special enactment which has been promulgated to discourage the land grabbers and to protect the right, of owner and the lawful occupant of the property as against the unauthorized and illegal occupants. The learned counsel for the petitioner has not been able to point out any jurisdictional error committed by the learned Additional Sessions Judge in the impugned order.
10. Consequently, this petition being premature as well as devoid of any merit stands dismissed in limine.