' MUHAMMAD ALI MAZHAR J.---By this common order, I intend to dispose of both Cr. Misc.
Applications Nos.S-4 and 114 of 2012. In Cr. Misc. Application No,S-4 of 2012, the applicants have assailed the order 24-12-2011, passed by learned Sessions Judge, Naushehro Feroze, whereby application moved by the applicants under section 249-A, Cr.P.C. Read with section 265-K, Cr.P.C, was dismissed so also application filed by the respondent No,3 under section 7(1) of the Illegal Dispossession Act, 2005, was disposed of while in Cr. Misc. Application No,114 of 2012, the applicants have prayed restoration of possession of hotel which was taken into possession by respondent No,2 as Custodian and sealed, on the orders of learned Sessions Judge, ,Naushehro Feroze.
2. Brief facts of the Cr. Misc. Application No,S-4 of 2012 are that the respondent No,3 filed a criminal complaint under sections 3 and 4 of the Illegal Dispossession Act, 2005 against the applicants alleging therein that he has agricultural land in Deh Kandiaro and revenue record is also in his name but the applicants were issuing threats of murder to the respondent No,3 if he will come at his own property. It is further alleged that the respondent No,3 filed application before Director Human Rights Commission/Session Judge, Naushehro Feroze on 9-6-2011 and after filing the application, the applicants have illegally and forcibly occupied the land of respondent No,3 on 11- 6-2011 on the force of weapons. The respondent No,3 filed the complaint with the prayer that the applicants may be directed to hand over the vacant possession of agricultural land to the respondent No,3 and a legal- action under sections 3 and 4 of the Illegal Dispossession Act may also be taken against the applicants.
3. The main thrust of the arguments of learned counsel for the applicants which I also reduced in my short order dated 16-4-2012 that criminal complaint, cannot be filed through attorney and he further argued that while filing the complaint under Illegal Dispossession Act, complainant failed to mention that he is not the owner but he is acting as an attorney. Report of Mukhtiarkar is also clear that complainant was not the owner of the property in question. He further pointed out that even during pendency of this application, on 3-4-2012, he moved an application in which it was pleaded that complaint under Illegal Dispossession Act cannot be filed through attorney but the application was dismissed on the same date on the ground that this question can be raised at the time of final arguments and another reason for dismissal of the application as observed by the learned trial court is that Cr. Misc. Application is pending in this court in which restraining order has been passed not to pass any final order,
4. On the other hand, the learned APG for the State' has also argued that while dismissing the application under section 249-A read with section 265-K, Cr.P.C., learned trial court failed to consider the crucial points that complaint was filed on misconceived, rounds and even learned trial court failed to consider the essential point of law that the criminal complaint cannot be filed through attorney and no findings has been given on this point.
5. On the other hand, the learned counsel for the respondent No,3 argued that the complaint under Illegal Dispossession Act is maintainable through attorney. He further argued that complainant was looking after the property hence there is no legal hindrance if he has filed the complaint. He further argued that during trial actual owner will be produced by the complainant in the court who will rectify the procedural defects if any through his own evidence in the matter.
6. Heard arguments of learned counsel. In order to satisfy myself, vide order dated 9-4-2012, R & Ps were called. Record reveals that respondent No,3 tiled complaint on 15-6-2011 and the learned trial court on the same date, called the report from the concerned Mukhtiarkar. In compliance of the order, the Mukhtiarkar submitted his report on 17-6-2011 in which he stated that according to Entry No, 244 of Deh Form an area 1-04 acres is in the name: of Abdul Razak and Muhammad Siddique with the share of 50 paisa each and Entry No, 245 is in the name of Abdul Razak and Muhammad Siddique with share of 0-41 paisa each while remaining 18 paisa is in the name of Abdul Aziz s/o Rahim Bux. He further stated that Entry No, 355 is in the name of Muhammad Aslam Cotton Factory while Entry No, 905 is measuring about 4-04, .Out of which 2-02 acres have already been sold, while 50 paisa share is in the name of Abdul Razak and Abdul Sattar Memon. Mukhtiarkar further stated that he visited the site which revealed that some Goonda type persons have encroached upon an area of 0-20 ghunta of S.No,79 and they have constructed house over it and on 0-35 ghuntas, they have ploughed land and cultivated wheat crop by Hari Muhammad Sharif.
7. According to the report of Mukhtiarkar it is clear that the respondent No,3/complainant is not the owner of land in question for which he lodged the complaint under Illegal Dispossession Act, but in the complaint in paragraph No,1, he has stated that the complainant has agricultural land in Deh Kandiaro, measuring 8-39 ghuntas, taluka Kandiaro, district Naushehro Feroze and revenue record is also in the name of complainant and opponents were issuing threats of murder to the complainant. It is clear beyond any shadow of doubt that when the complaint was filed, complainant showed himself to be the owner of the land in question but it was never stated rather than concealed and suppressed that the land is in the name of his brothers and he is merely acting as an attorney. Report of Mukhtiarkar confirmed that no land is in the name of complainant even then without adverting to this critical aspect, his statement was recorded by the trial court under Section 200 Cr.P.C. On 27-6-2011. The Illegal Dispossession Act is special law in which proper mechanism is itself provided and it is not mandatory for A the court that before taking cognizance, statement under Section 200 Cr.P.C. Should be recorded first. In case of Mst. Inayatan Khatoon v.
Muhammad Ramzan, reported in 2012 SCM R 229, the honourable Supreme Court has held as under: "Trial court entertained complaint filed against accused but High Court set aside the order on the ground that cognizance could only be taken by trial court following the procedure provided under S.200, Cr.P.C. High Court erred in recording findings that examination of complainant under S.200, Cr.P.C. Was mandatory before taking cognizance under Illegal Dispossession Act, 2005. Such findings of High Court were contrary to the language of Ss. 2, 3, 4 and 5 of Illegal Dispossession Act, 2005. High Court misdirected itself by holding that word "owner or occupier" defined in Illegal Dispossession Act, 2005, did not include more than one owner and or occupier, meaning thereby that if property was jointly owned or jointly occupied by complainants they could not approach trial court by filing complaint under S.5 of Illegal Dispossession Act, 2005. Order of taking cognizance by trial court was within the parameters of Illegal Dispossession Act, 2005, and introducing procedure under Cr.P.C. For proceeding with a private complaint after examining the complainant under S.200, Cr.P.C. Was foreign to the language of Illegal Dispossession Act, 2005.
Supreme Court set aside the judgment passed by High Court and remanded the matter to trial court for decision in accordance with law. Appeal was allowed."
8. The statement recorded under section 200, Cr.P.C. Reveals that the complainant stated that he owns land in Deh Kandiaro and the record of rights available in the name of his brothers and also in the name of his son and he has power of attorney to look after such land. He further stated that Gulzar Ali, Anwar Ali, Shabir Ahmed and Abid Hussain have occupied his land on the strength of force on 18-6-2011. First of all, it is clear that factum of power of attorney is not mentioned in the complaint and the disclosure of the status of complainant being attorney was brought first time into the notice of court in the statement recorded under section 200, Cr.P.C. Which unequivocally shows that actual owner/ occupier of land never come forward or made any complaint to the court directly but the attorney filed a complaint even without disclosing a single word that he is not owner but acting as an attorney.
9. The applicants moved an application under section 249-A read with section 265-K, Cr.P.C. In which specific point was raised that the complainant is not the owner of land, therefore, he has no right and authority to lodge complaint against the accused persons.. It was further stated that co- accused Shabir Ahmed had purchased one plot from Abid Hussain Mallah through sale deed. It was further stated that neither in the memo of complaint nor in the statement of complainant, any land is properly mentioned that which survey number was in possession of complainant. This application was heard but it was dismissed dated 24-12-2011. The learned trial court noted the submissions of complainant's counsel that under civil litigation, the matter settled amicably that 2- 00 acres land was given to the occupants and so also cash amount was given to the family members and such execution of deed was prepared and the present complainant was attorney in the civil court. The trial court further quoted that S.H.O., Police Station Kandiaro reported that he inspected the place and found out that matter is pending before Senior Civil Judge, Kandiaro and the accused persons filed petition in this court and claimed that they are settlers of village Muhammad Sharif Brohi since long time and the complainant is desirous to eject them without adopting due course of law. The reason of dismissing the application as observed by the learned trial court is that the Mukhtiarkar (Revenue) has produced sufficient documents to substantiate the claim of the complainant that accused persons have occupied land without any title and they have not been able to produce any document to substantiate any claim over the property which is being claimed by the complainant. On the contrary, the advocate for the applicants produced copy of record of rights and registered conveyance deed in the name of Anwar Ali, brother of applicant No,
1. He has also produced copy of civil suit and compromise decree passed in Suit No,45 of 2006. However, without giving any finding whether the compliant has been filed on concealment and suppression of facts or even without any title possessed by the complainant, the application was dismissed on the ground that the complainant produced attested power of attorney executed in his favour by Abdul Razak and Muhammad Sharif to file civil or criminal litigation before competent court of law.
10. While dismissing the application under section 249-A read with section 265-K, Cr.P.C., another application which was moved by the complainant under section 7 of the Illegal Dispossession Act, for an interim relief was also disposed of and the Mukhtiarkar (Revenue), Kandiaro was directed to take over the possession of the property in dispute in view of subsections (3) to (5) of section 7 of the Illegal Dispossession Act, 2005. The trial court further observed that the property in dispute would be handed over to the persons who will clarify his title at the time of disposal of direct complaint. After passing the order, Mukhtiarkar also submitted his report dated 8-3-2012 in which he stated that in view of order, he has taken over possession of the hotel as custodian, which is constructed upon the disputed property.
11. The aforesaid interim order on the face of it is misconceived which itself shows that the learned trial court was not satisfied, regarding clean title of the property, otherwise, there was no occasion to mention in the order that the property will be handed over to the person who will clarify his title at the time of disposal of the direct complaint. Under Illegal Dispossession Act, it is not the function or dominion, of the court to decide or adjudicate upon the title of the property in question. It is also strange that while passing the order for an interim relief, the trial court failed to consider subsections (1) and (2) of section 7, but the receiver/custodian was appointed in view of subsections (3) to (5) of section 7. For the convenience and ready reference, section 7 of the Illegal Dispossession Act is reproduced as under:- "7. Eviction and mode of recovery as an interim relief.--
(1) 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 they case may be, in possession.
(2) Where the person against whom any such order is passed under subsection (1) fails to comply with the same, the Court shall notwithstanding any other law for the time being in force, take such steps and pass such order as may be necessary to put the owner or occupier in possession.
(3) The Court may authorize any official or officer to take possession for security compliance with its orders under subsection (1). The person so authorized may use or cause to be used such force as may be necessary.
(4) If any person, authorized by the Court, under subsection (3), requires police assistance in the exercise of his power under this Act, he may send a requisition to the officer-in-charge of a police station who shall on such requisition render such assistance as may be required.
(5) The failure of the officer-in-charge of police station to render assistance under subsection (4) shall amount to misconduct for which the Court may direct departmental action against him".
12. It is clear from the above provisions that under subsection (1), court is empowered as an interim relief to put the owner or occupier as the case may be in, possession if during trial the court is satisfied that a person is found prima facie to be not in lawful possession and subsection (2) provides that if a person against such an order is passed under subsection (1) fails to comply with the same, the court shall take such steps and pass order as may be necessary to put the owner/occupier in possession in order to execute and implement the order passed under subsection (1), however, further mechanism and procedural steps for execution and implementation of order passed under subsection (1) are provided under subsections (2) to (5) of section 7 of the Illegal Dispossession Act. The learned trial court read subsections (3) to (5) in isolation and segregation and ignored that aforesaid provisions are only provided for execution and implementation of an order passed under subsection (1) and without any law ful authority appointed Mukhtiarkar as custodian/receiver of the property till final disposal of direct complaint which is foreign and alien to the provisions of Illegal Dispossession Act. Section 7 of the Act pertains to the eviction and mode of recovery as an interim relief which makes it clear that this provision has been enacted only to hand over the possession to .The owner or occupier and these powers can only be exercised during trial when the court is satisfied that C the accused person prima facie found to be under unlawful possession of the property in question. While passing the order, learned trial court failed to take into account real spirit and scope of section 7 and passed the order in disregard of subsection (1) of section 7 and also appointed receiver/ custodian of the property in question which is not tenable or sustainable under the law.
13. So far as another order passed on the same day whereby application moved under section- 249- read with section 265-K, Cr.P.C. Was dismissed, I would like to observe that while dismissing the application, learned trial court failed to consider whether the charge is groundless or whether there is no probability of accused being convicted of any offence: It is quite obvious and noticeable from the impugned order that while dismissing the application, learned trial court failed to consider and appreciate material available on record and decided application in a manner which is contrary to very spirit and scope of section 249-A and or section 265-K, Cr.P.C. Despite repeatedly arguing by the learned counsel for the accused that complaint has been filed on concealment and suppression of facts and that the complainant is not the owner of the property but this legal question has not been decided by the learned trial court. The trial court further failed to take into account, that in order to cover up this legal disability, complainant produced power of attorney at the time when his statement under section 200. Cr.P.C. Was recorded.
14: In the judgment authored by me in Criminal Miscellaneous Application No, D-629 of 2011, the provision of section 249-A, Cr.P.0 was discussed in detail as under:- "Let us first discus the minutiae and niceties of section 249-A, Cr.P.0 which empowers the court to acquit the accused at any stage of the case if after hearing the prosecutor and the accused and for the reasons to be recorded, court considers that the charge is groundless or that there is no probability of the accused being convicted of any offence. It is clear from the language embodied under section 249-A, Cr.P.C. That while deciding application in this particular section, court has to consider two crucial points, whether the charge is groundless or whether there is no probability of the accused being convicted of any offence. This provision gives right to accused person to move application for his acquittal at any stage of the proceedings which may be even prior to framing of charge or recording of evidence or at any subsequent stage and there is no bar imposed by law conditional to stage of proceedings. In order to decide this application in true spirit and scope, it is necessary for the court to examine entire material available on record and hold in the order in case of acquittal that the charge is groundless or that there is no probability of the accused being convicted of any offence and in case of dismissal of application moved under section 249-A, Cr.P.C. Court should discuss the entire material available on record with probable cause on the basis of which reasonable grounds appear to continue the trial".
"By enacting sections 249-A and 265-K, Cr.P.C, the Legislature in its wisdom did not leave the question of recording evidence as condition before taking action under either of the provisions and the use of expression at any stage of the case is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or even, it could be latter stage as well. If any authority is needed, one may refer to PLD 1999 SC 1063 (Muhammad Sharif v. State). Similarly, in another judgment reported in 1994 SCM 798 (State v. Asif ll Zardari), the honourable Supreme Court held that section 249-A, Cr.P.C. Empowers the presiding officer of the court to acquit the accused at any stage of the trial and only requirement to be fulfilled are firstly, that hearing is to be given to the prosecutor and counsel of accused and secondly, reasons to be recorded in support of conclusion that the charge is groundless or that there is no probability of accused being convicted. It is very clear that the application can be filed at any stage of the proceedings and it.Is not necessary and there is no requirement that such application is to be filed after evidence of the witnesses is recorded".
15. As a result of above discussion, both the impugned orders dated 24-12-2011, are set aside. The trial court is directed to decide both the applications afresh and pass speaking orders. However, the propriety demands that Application moved under section 249-A read with section 265-K, Cr.P.C. Should be decided first within a period of fifteen days. The Cr. Misc. Applications are disposed of accordingly. Office is directed to return back the R & P to the learned trial court.