' NISAR MUHAMMAD SHAIKH, J.---This Criminal Revision Application is directed against the orders dated 9-3-2010 and 26-5-2010 passed by the Court of Session, Jamshoro @ Kotri in Complaint No,30 of 2009 which was filed by applicant/complainant Gui Hassan 'against respondents/accused Muhammad Usman and others under section 3 of Illegal Dispossession Act, 2005 (hereinafter referred to as the said Act).
2. As per the first order dated 9-3-2010, the application dated 20-2-2010 moved on behalf of the complainant with a prayer to disallow the counsel for accused from arguing the matter before taking cognizance of the complaint, was dismissed by learned Sessions Judge, Jamshoro holding that there is no bar to hear the counsel for accused before bringing the complaint on record.
Whereas, by second order dated 26-5-2010 passed by learned Additional Sessions Judge, Kotri who received the case by way of transfer, the said complaint was dismissed. The last and relevant para of such order is as under:-- "Heard the complainant and his Advocate, so also arguments of Mr: Faraz Ahmed Chandio, Advocate for accused and perused the case papers from which, it reveals that according to report of SHO of Police Station Khanoth and Mukhtiarkar (H.Q. And Estate), Jamshoro shows that accused No,1 has purchased the said plot from complainant through sale agreement, which fact is denied by the complainant, therefore, in my view the matter seems to be a civil nature, which can only be resolved by Civil Court having jurisdiction where, after recording of evidence of both the parties, dispute can be resolved; hence I hereby dismissed the complaint in hand."
3. The relevant facts of the case are that the applicant/complainant Gul Hassan filed complaint under section 3 of the said Act on 15-10-2009 stating therein that his father Ramzan was granted a plot admeasuring 6720 sq. Ft. Situated at Village Ali Abad, Deh Wachero, Taluka Kotri and such `Sanad' was issued to him and entry was made in deh Form-II in favour of his father, who died about two years back leaving behind the complainant as his sole surviving legal heir. The complainant along with his Aunties Mst. Sakina and Mst. Zeenat used to reside on the said plot where they had constructed one room, kitchen and bath room. It was alleged that the accused persons who put their evil eyes over such plot after the death of complainant's father, came armed with weapons on 23-8-2009, forcibly entered in the house of complainant and caused blows to him and insulted womenfolk and also scattered their house hold articles. The complainant party then approached the Respondent/SHO of PS Khanot for legal action but the police supported the accused illegally. It was further alleged that on 28-8-2009 at about 10-00 p.m. The accused repeated the offence whereby they forcibly dragged the complainant party, illegally dispossessed them, threw their household articles, stolen important documents including the `Sanad' of plot in question and also demolished the bathroom. The complainant party then repeatedly approached the police for taking legal action against accused but due to their collusive role, a false F.I.R. No,36 of 2009 under sections 506(2), 147, 148, 149, 337-H(2) and 504, P.P.C. Was lodged by accused Muhammad Usman at Police Station Khanot on 31-8-2009 against the present complainant and his relatives, claiming to have purchased the said plot and house from complainant on 15-8-2008.
The complainant party then moved applications to various authorities and also agitated by procession, which was also published in the newspapers. The complainant further stated that he being sole legal heir of his deceased father, is lawful owner of the above house where they used to reside and such property belonging to Goth Abad Scheme cannot be transferred by any means prior to Foti Khata Badal, which is not yet changed, therefore, the claim of accused Muhammad Usman is in violation of law and he appears to have manipulated the documents fraudulently and that the accused have forcibly occupied the said property and have illegally dispossessed the complainant party for which they have no lawful authority to do so, therefore, they have committed the offence punishable under section 3 of the said Act.
4. It was argued by learned counsel for the applicant (complainant) that the respondents Nos.1 to 4, who were the proposed accused in the complaint filed by complainant, had no locus standi to appear before the trial Court nor it could hear them before taking the cognizance and issuance of the process but the learned Sessions Judge as well as Additional Sessions Judge, not only heard the Advocate for the proposed accused but also considered the documents placed by them on record though the complaint was not yet brought on record, therefore, such order dated 9-3-2010 passed for dismissal of the application of complainant dated 20-2-2010 moved for disallowing the counsel for accused from arguing the matter, is liable to be set aside being opposed to the law. In support of his contention, he also referred the relevant para of the order dated 7-12-2007 passed in the case of Sharmila Farooqui v. The State reported as 2009 MLD 850, which is reproduced below:-- "I have given my anxious consideration to the arguments advanced by the learned counsel for the respective parties and have gone through the record, particularly the Enquiry Report. I am of the firmed view that the proposed accused have no locus standi in a criminal complaint unless the trial Court takes cognizance of the case. In such view I am fortified by the judgment of the Hon'ble apex Court reported in PLD 2002 SC 687 (Supra), whereby the Hon'ble Supreme Court was of the view that the person complained against has no right of participation until cognizance of the matter is taken. As such the issuance of notice to the accused by the learned trial Court was out of boundaries settled in a complaint case."
5. On the other hand, the contention of learned counsel for respondents Nos.1 to 4 was that there is no bar under Illegal Dispossession Act, 2005 nor it was in violation of any law for the accused persons to participate in the proceedings even before the complaint is brought on record and, on the contrary, the presence of accused facilitated the Court to appropriately decide the issue of proceeding further with the trial. In this connection, he also referred the relevant paras of the order dated 15-2-2008 passed in the case of Sahib Khan v. Saaduiiah Khan and others reported as PLD 2008 Peshawar 49, which are also reproduced below:-- "Again, another question arises that whether the aforesaid application of mind, under section 5(1) of the Act, to further take cognizance of the trial under section 5(2) of the Act, is permissible after procuring attendance of the accused, as it was done in the present case? Answer to this question is manifestly available in section 4(3) of the Act which empowers a trial Court to direct arrest and production of an accused at any stage of the proceedings. The words "at any stage of the proceedings" are wide enough to cover the present case wherein the attendance of respondents accused was procured before taking cognizance of the trial under section 5(2) of the Act.
' I would like to opine at this juncture that procurement of attendance of accused for hearing before proceeding with the trial under section 5(2) of the Act would be more appropriate as it would honour the golden principle of law "Audi alteram partem". It would provide a very valuable opportunity to accused to succinctly place his case before the trial Court at the outset to make the Court to understand extraneous and intrinsic implications of the investigation report at the time of applying its mind under section 5(1) of he Act to decide whether further progress in the complaint is necessary or not. In this manner the Court would more safely and appropriately decide the important issue of proceeding further with the trial or not. Dismissal of not maintainable complaints at this stage shall save precious Court time, and shall also save the parties from unnecessary financial expenditure.
' I, therefore, hold that procurement of attendance of the accused in this case is covered by section 4(3) of the Act and not in violation of law. Rather it was strictly in accordance with the scheme and objective of the Act. The ground B of the petitioner in the revision petition is thus repelled."
6. It appears that in the instant case, no notice was issued by the Court to the proposed accused but they voluntarily made appearance on 5-12-2009 through their counsel who then placed some documents on record of the Court and also argued the matter when it was fixed for such purpose.
Since there is no specific bar in the special statute of Illegal Dispossession Act, 2005 to prevent the nominated/proposed accused from voluntarily appearing before the Court and placing their submissions prior to the complaint is brought on record, hence their such participation in the matter was not in violation of any provision of the said Act nor such irregularity, if any, would vitiate the proceedings. Accordingly, the order dated 9-3-2010, which was also not challenged by the applicant initially at relevant time, calls for no interference by this Court.
7. It was next argued by learned counsel for applicant that since the complaint of the applicant was dismissed by learned Additional Sessions Judge, without going through and without touching the material question relating to, criminal liability of the accused for illegal and forcible dispossession of the applicant, therefore, mere by this reason alone, the impugned order dated 26- 5-2009 is liable to be set aside being not sustainable in law. On the other hand, the contention of learned counsel for respondents was that since the accused Muhammad Usman has already purchased the plot in question from the applicant under an agreement of sale dated 15-8-2008, therefore, it was purely a dispute of civil nature and as such the learned Additional Sessions Judge has rightly dismissed the complaint at its initial stage. Relying upon the case of Retd. Group Capt.
A.M. Morad v. Muhammad Azmatullah Siddiqui (1991 SCMR 2415) he also contended that the dispute of the private parties over the title, is required under law to be adjudicated upon in the Civil Court only.
8. The perusal of record shows that initially, Mst. Sakina the Aunt of present applicant Gul Hassan, had filed a Criminal Miscellaneous Application No,247 of 2009 under section 22-A and B, Cr.P.C. For registration of F.I.R. Against proposed accused but the same was dismissed by learned Sessions Judge, Jamshoro @ Kotri vide his order dated 13-10-2009 with observation that the applicant may file a direct complaint in the matter. Accordingly, the present complaint was then filed within three days on 15-10-2009 when the report of concerned Mukhtiarkar and SHO of PS Khanot was ordered to be called for. The report dated 31-10-2009 'submitted by the SHO, did not say directly about the possession or dispossession in question. However, it was also stated therein that the applicant Gul Hassan had refused to give the plot/house in question to accused Muhammad Usman after selling it to him about one year back. This indicated that the applicant was in occupation/possession even after the execution of alleged sale agreement dated 15-8-2008. Whereas the report of Mukhtiarkar, H.Q. And Estate, Jamshoro dated 4-12-2009 was in respect of verification of ownership and the same showed that the `Sanad' under Goth Abad Housing Scheme was issued in respect of plot in question in favour of Ramzan, the father of applicant and such entry was also made in his favour in Village Form-II. He also stated that on 10-9-2009, the respondent Muhammad Usman had moved an application for transfer of such plot in his favour and he also produced the said Sanad and sale agreement but such request was regretted as there was restriction on transfer of the plot under Sindh Goth Abad Scheme.
9. Referring the reports of the said SHO and Mukhtiarkar, learned Additional Sessions Judge dismissed the complaint of applicant vide impugned order dated 26-5-2010, holding that according to these reports the accused Muhammad Usman has purchased the said plot from complainant Gul Hassan through sale agreement which is denied by complainant, therefore, the matter seems to be of civil nature which can only be resolved by Civil Court.
10. It is strange that the learned Additional Sessions Judge did not bother to go through the material question relating to the applicant's illegal and forcible dispossession, as was alleged by him in his complaint filed under section 3 of Illegal Dispossession Act, 2005 but surprisingly, its relevant provisions were ignored by the trial Court which appears to have had not tried to ascertain as to whether a prima facie case constituting the alleged offence, was made out or not, within the parameters of the said Act. On the contrary, it appears that no proper inquiry or investigation as required under the said Act, was conducted to find out the truthfulness or otherwise of the complaint. Even the news clippings of many newspapers published on .2-9-2009, which were filed by the applicant to show that there was procession and agitation from their side against their forcible dispossession, were also not taken into consideration to determine the question of forcible dispossession as claimed by the applicant. But, the learned trial Court, as appears from the record, was impressed by the report dated 28-9-2009 of SPO addressed to the DPO that the dispute between the parties is of civil nature. This report was filed by learned Advocate for accused together with other documents before the trial Court seized of the matter under the said Act. However, this report also says nothing in respect of alleged incident of forcible dispossession, 4f it was happened or not.
11. Although the sale agreement of the respondent No,1 is being disputed by the applicant, while the Sanad of the applicant's father is an undisputed document, yet the applicant/complainant is not legally barred from maintaining both the civil and criminal actions simultaneously. Thus, it was the foremost obligation of trial Court to ascertain as to whether the allegation made in the complaint constitutes an offence under the said Act irrespective of the fact that the matter relating to the sale agreement in question could be dealt with by the Civil Court. In a case of Mumtaz Hussain v. Dr. Nasir Khan and others (2010 SCMR 1254), it was also held that; "In the present type .Proceedings, the question required to be resolved is the possession and dispossession etc. Within the meaning of section 3 of the Act, as the parties have not, nor can come for adjudication of their title in the property."
12. In view of the above, the case reported as 1991 SCMR 2415 (Supra), as relied upon by learned counsel for respondents, is quite distinguishable to this case. Moreover, the Illegal Dispossession Act, 2005 was not in existence at that time.
13. In the circumstances, it is clear that the learned trial Court has failed to exercise the jurisdiction vested in it, in a proper manner, therefore, its order dated 26-5-2010 being not sustainable in law, is here by set aside and the case is remanded to be dealt with in accordance with law, specially the provisions of Illegal Dispossession Act, 2005.
14. This Criminal Revision stands disposed of in the above terms. However, the observations, if any, made in this order, shall not be taken to affect the merits of the case to be dealt with by the trial Court.
Case remanded.
201.2 P Cr. L J 276 [Peshawar] Before Nisar Hussain Khan, J WALI KHAN---Petitioner versus HASHAM KHAN and others---Respondents Criminal Miscellaneous Quashment No, 176 of 2010, decided on 7th September, 2011.
(a) Criminal Procedure Code (V of 1898)--- ----Ss. 249, 249-A & 561-A---Penal Code (XLV of 1860), Ss.337- A(i)/337-F(i)/147/149---Punishment of Shajah, ghayr-jatfah, rioting and unlawful assembly---Quashing of orders---Impugned orders had been passed by Magistrate, one under 5.249, and the other under S.249-A, Cr.P.C.---Both said orders had been upheld by the Sessions Court in revision---Validity---Section 249, Cr.P.C. Did not empower the Magistrate to fix time for appearance of the complainant and if he had failed to do so, then to acquit the accused on that basis---Magistrate, in the present case, had not passed order of acquittal of accused under S.249-A, Cr.P.C. After due compliance of legal formalities, rather he had passed one order whereby he stopped the proceedings under S.249, Cr.P.C. With the further direction to S.H.O. To produce the complainant along with the case file within one month, failing which the accused would stand acquitted under S.249-A, Cr.P.C.---Such was the original order whereby the accused had been acquitted---Second order was just a cosmetic one acquitting the accused on the application and recommendation of the local police, although practically the accused had already been acquitted by the earlier order, which was highly illegal, unlawful and unwarranted order amounting to abuse of the process of court---Mandatory conditions for acquittal of accused mentioned in S.249-A, Cr.P.C. Had not been- complied with by the Magistrate---Neither Prosecutor had been heard, nor any finding was given that the charge against the accused was groundless or there was no probability of their conviction in the case--- Even no reasons had been given by the Magistrate in support of his findings---Magistrate had acted in sheer violation of legal provisions-Findings of the revisional court were not applicable to the peculiar circumstances of the case---While exercising powers under S.561-A, Cr.P.C. High Court would not entertain the petition as a court of appeal against the revisional order of lower court, but it had to be ascertained that whether any illegality causing miscarriage of justice or abuse of process of court had been committed by the lower fora or not---High Court having reached the conclusion that grave illegality had been committed, would be under a legal obligation to set it right irrespective of the limitation, in order to meet the ends of justice---Impugned orders were quashed in circumstances and the case was remanded to Magistrate to proceed with the trial in accordance with law. [pp. 279, 280, 2811 A, B, C, D & E
(b) Criminal Procedure Code (V of 1898)--- ----S. 561-A--- Powers under S. 561-A, Cr.P.C.--- Scope--- While exercising powers under S.561-A, Cr.P.C. High Court would not entertain the petition as a court of appeal against the revisional order of lower court, but it had to be ascertained that whether any illegality causing miscarriage of justice or abuse of process of court had been committed by the lower fora or not---High Court having reached the conclusion that grave illegality had been committed, would be under a legal obligation to set it right irrespective of the limitation in order to meet the ends of justice. [p. 280] D Mian Saadullah Jando for Petitioner.
Said Karim Shalmass and Ikramullah Khan, A.A.-G. For Respondents.
Date of hearing: 6th September, 2011.
' NISAR HUSSAIN KHAN, J.---Through this quashment petition Wali Khan seek annulment of the order of learned Additional Sessions Judge/Izafi Zilla Qazi, Samarbagh dated 12-5-2010 whereby he maintained order of learned Illaqa Qazi Criminal Munda dated 28-1-2005 and 20-10-2005 by dismissing the revision petition and upholding the order passed under sections 249 and 249-A, Cr.P.C.
2. Brief facts of the case are that two cross cases were registered against both the parties; one against the respondents vide F.I.R. No,107 dated 6-2-2004 under section 337-A(1)/337-F(1)/147/149, P.P.C. While the second F.I.R. No,116 dated 8-2-2004 was registered against the present complainant party under section 302/34, P.P.C. Police Station, Munda.
3. It appears from the record that on submission of challan before the Magistrate in case F.I.R.
No,107, accused/respondents appeared while complainant could not be served as he had left his abode according to the report of the bailiff/process server. As a consequence of this report, learned Magistrate vide his order dated 28-1-2005, stopped proceedings under section 249, Cr.P.C, with the direction to the SHO concerned that he should produce complainant along with the case file within a period of one month failing which this order would be deemed as have been passed under section 249-A, Cr.P.C. And the accused would stand discharged. The learned Magistrate on the basis of this order along with report of the local police; that complainant party is absconder in cross case F.I.R. No, 116 and their arrest in near future seems impossible, so the accused were acquitted of the charge, on 20-10-2005. These orders were challenged by the petitioner before the learned Additional Sessions Judge/Izafi Zilla Qazi, Samarbagh District Dir Lower through a revision petition which was dismissed on the ground that order under section 249A was appealable under section 417(2-A), Cr.P.C. So the revision was barred under section 439(5), Cr.P.C.
4. Learned counsel for the petitioner argued that basic order dated 28-1-2005, passed by the Magistrate was illegal arbitrary which was revisable so the revision was competently filed. He further argued that there is no limitation for filing of revision petition, hence his revision was wrongly dismissed. He further argued that grounds of 249-A, Cr.P.C. Have not been discussed nor made basis for acquittal of the accused. Rather the order is based on the earlier order of the Magistrate dated 28-1-2005 whereby the proceedings in the case was stopped. So in this view of the matter grave miscarriage of justice has been caused to the petitioner as he has not been heard at the time of acquittal under section 249-A, Cr.P.C. Nor the prosecutor was given notice nor was heard, so the impugned orders of Magistrate are illegal. While learned revisional court was legally obliged to interfere for correction of this illegality of the trial court but he has failed to discharge his obligation.
5. Conversely, learned counsel for the respondents argued that learned Magistrate had given one month time to the complainant to appear and pursue his case but be failed to appear before the Court. He further submitted that respondent was absconder so he could not be served, He lastly submitted that the revision petition and abashment petition are time-barred, so this petition is liable to be dismissed.
6. Learned AAG appearing on behalf of the State conceded at the bar that orders passed by Magistrate are illegal. Regarding the service of the complainant he pointed out that Wali Khan petitioner was injured P.W. And was in custody of police in cross case, so he could have been served but the learned Magistrate did not make any effort to procure his attendance. However, he objected on maintainability of revision petition on the ground that petitioner was legally required to file appeal under section 417(2-A), Cr.P.C. But he has failed to avail that remedy so he was precluded to file revision petition which is barred under section 439(5), Cr.P.C. Hence in the circumstances, quashment petition under section 561-A, Cr.P.C. Also does not lie. On these premises learned AAG sought dismissal of this quashment petition.
7. I have considered the submissions of learned counsel for the parties and learned AAG and have gone through the record with their able assistance.
8. The facts of the case clearly reflect that the learned Magistrate had acquitted the accused on 28-1-2005 whereby he stopped the proceedings under section 249, Cr.P.C. With the rider that complainant should be produced along with the case file within one month failing which the accused shall be deemed acquitted under section 249-A, Cr.P.C. There is no such provision under section 249, Cr.P.C. Which may empower the Magistrate to fix time for appearance of the complainant and if he fails to comply with the order, the Magistrate may A acquit the accused on that basis. Likewise section 249-A, Cr.P.C. Has got its own connotation and limitation which have not been adhered to by the Magistrate. For ready reference section 249-A, Cr.P.C. Is reproduced as under:-- 249-A Power of Magistrate to acquit accused at any stage. Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or there is no probability of the accused being convicted of any offence.
9. The bare reading of section 249-A, Cr.P.C. Signifies that the first condition for any order to be passed under section 249-A, Cr.P.C. Is that prosecutor should be heard but this requirement has not been complied with by the Magistrate. The second and prime condition precedent for acquittal of accused under section 249-A, Cr.P.C. Is that if the charge is groundless or there is no probability of accused being convicted of any offence. In support of his findings the Magistrate shall have to record reasons but none of these legal requirements find mentioned in the impugned orders of the Magistrate, which is sheer violation of legal provision and abuse of process of court as well as law which cannot be taken so lightly nor. It can be maintained on any technical ground whatsoever.
10. So, far as the findings of the revisional court as well as the objection of learned counsel for the respondents and learned AAG with regard to non-availing the remedy of appeal under section 417(2-A), Cr.P.C. Is concerned, these are not applicable to the peculiar circumstances of the instant case. The learned Magistrate did not pass order of acquittal under section 249-A, Cr.P.C. After due compliance of legal formalities. Rather the Magistrate has passed the order on 28-1-2005 whereby he stopped the proceedings under section 249, Cr.P.C. And in the same breath, he further directed to the SHO concerned that the complainant along with the case file be produced within a period of one month failing which the accused shall stand acquitted under section 249-A, Cr.P.C. So this was the original order whereby the accused/respondents have been acquitted. The second order dated 20-10-2005 is just a cosmetic one which has been passed on the application and recommendation of the local police. While practically the respondents had already been acquitted by his earlier order dated 28-1-2005 which is highly illegal, unlawful and unwarranted and is abuse of process of the court which cannot be sustained by any means. If these orders of the Magistrate are maintained on any technical ground it would amount to perpetuate an illegality committed by the Magistrate.
11. In the given circumstances it is vividly apparent on the record that impugned orders of the Magistrate have caused grave miscarriage of justice, for rectification of which there is no remedy available to the petitioner except the inherent jurisdiction of this Court. While exercising powers under section 561-A, Cr.P.C. This Court does not entertain the petition as court of appeal against the revisional order of the lower court but it is to be ascertained that whether any illegality causing miscarriage of justice or abuse of process of court has been committed by the lower for a or not.
Irrespective of the limitation, when the court comes to a definite conclusion that grave illegality has been committed which amounts to abuse the process of the court and law then it becomes legal obligation to set it right in order to meet the end of justice.
12. For the reasons discussed above, this petition is allowed. The impugned orders of learned Magistrate are quashed and the case is remanded back to the learned Magistrate to proceed with the trial in accordance with law.