' SAGHEER AHMAD QADRI, J.---Petitioner/complainant filed a private complaint against the respondents under section 3 read with section 7 of the Illegal Dispossession Act, 2005 before the learned Sessions Judge, Chakwal, which was entrusted to the court of learned Additional Sessions Judge/respondent No,1 mentioning the facts that he was resident of Mauza Malot, Police Station Kallar Kahar District Chakwal and presently was residing at Satellite Town, Rawalpindi; that his ancestral owned land bearing Khasra Nos. 2231 to 2239, Khewat Nos.94 to 163, Khatooni Nos.737 to 373 situated in the revenue estate of Mauza Malot was in his possession since ancestors; that the respondents previously in the life time of petitioner's father Cap. Muhammad Khan also tried to dispossess him from the land mentioned above and how suit against respondents Nos.7 to 14 which was decided in his favour on 7-2-1979 and attained finality as was never challenged before any court of appeal etc; that on 17-7-2010 at 5-00 p.m. Respondents Nos.2 to 15 armed with deadly weapons in furtherance of their common object trespassed into the land and in the presence of Akbar Ali son of Sultan, Abdul Rauf son of Muhammad Tasib, Muhammad Israr son of Hazir Muhammad, Basharat son of Umar Hayat, Muhammad Rasheed son of Atta Muhammad and Qaisar son of Riasat Ali P. Ws. Threatened for dire consequences and got the illegal possession of the land and also damaged the trees etc. At the spot; that Ali Akbar informed the petitioner/ complainant about the occurrence and he reached at the spot, contacted the respondents through Muhammad Tasib son of Atta Muhammad but they did not consider petitioner's request rather threatened him that he should remain within his limits. Prayed that action be initiated against the respondents accordingly.
2. On filing of the private complaint learned trial Court/respondent No,1 recorded preliminary statement of the petitioner/complainant Kausar Iqbal wherein he reiterated his stand mentioned in the complaint. The learned trial Court sought report from the concerned SHO, which report was submitted showing that no such occurrence ever took place and respondents are actually co- sharers in the land in dispute. The SHO also did not observe as he visited the spot and found no signs/evidence of cutting the trees etc. Learned trial Court on the basis of report and the available record found that no offence under section 3 of the Illegal Dispossession Act, 2005 was made out, hence, dismissed the complaint vide impugned order dated 25-8-2010. Feeling aggrieved the petitioner preferred this writ petition, which was admitted for regular hearing on 6-10-2010 and notices were issued to the, respondents.
3. Learned counsel for the petitioner argued with vehemence that the impugned order is against the law and facts of the case. Learned counsel argued that if the contents of the complaint are seen, in para 2 the petitioner-complainant specifically claimed himself as owner in possession of the land in dispute. Learned counsel referred the judgment dated 7-2-1979 in a civil suit titled "Muhammad Khan versus Sooba Khan and others" passed by learned civil court at Pind Dadan Khan wherein the suit for declaration was decreed in favour of the petitioner's father declaring him in possession of the disputed khasra numbers. Learned counsel argued that the learned trial court only on the basis of the report by the SHO without affording an opportunity to the petitioner/complainant to lead further evidence at preliminary stage in, violation of section 202, Cr.P.C. Dismissed the complaint. Contends that at preliminary stage petitioner was only obliged to make out a prima facie case to further proceed for disposal of the matter in accordance with law after summoning the other side; that although prima facie offence under section 3 of the Illegal Dispossession Act, 2005 was made out but learned trial court did not consider the evidence available on record and dismissed the complaint vide impugned order which is liable to be set aside; that the police report was misleading specially in the light of the judgments passed by the civil courts in favour of till petitioner' father; that impugned order in the light of judgments is liable to be set aside. While relying on "Mrs. Mehmooda Aftab through Attorney and another v. Marghoob Hussain and 3 others" (2010 MLD 503), "Abdul Rehman v. Muhammad Shahid Qureshi and another"
(PLD 2009 Karachi 117), "Iftikhar Ahmad v. Zulfiqar Ali and 3 others" (PLD 2008 Lahore 59), "Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others" (PLD 2008 Lahore 358), "Muhammad Riaz Ahmed Khan v. Imran Abdullah and 5 others" (2009 PCr.LJ 491) and "Mian Sharif Shah v. Nawab Khan and 5 others" (PLD 2011 Peshawar 86) prayed that this petition be allowed.
4. Conversely, learned counsel for respondents Nos.2 to 15 vehemently opposed the arguments advanced by learned counsel for the petitioner by contending that except the oral assertion by the complainant while appearing as A.W.1 he did not produce any document along with the complaint.
Learned counsel argued that land in dispute is "Shamilat Deh" reserved for common use of the owners in the village; that petitioner although mentioned that his father was earlier in possession of the disputed portion of the land but he did not produce any evidence in the shape of documents before the Court. He did not produce any revenue record showing his possession over the land in dispute. He never moved before any of the revenue officials to get the land demarcated and to prove if any encroachment was ever made by the respondents. Even otherwise, being co-sharer every owner in the village is entitled to use the "Shamilat Deh" which is reserved for common purposes; that subsequent to dismissal of complaint, petitioner has also filed suit for possession under section 9 of the Specific Relief Act against respondents Nos.1, 2, 8, 9 and 15 which is still pending in the civil court at Chakwal; that complaint under section 3 of the Illegal Dispossession Act, 2005 cannot be filed against a co-sharer in the circumstances of the case; that the learned trial court rightly dismissed the complaint vide impugned order dated 25-8-2010. While relying on "Jan Pervez v. Haji Fazal Hussain and 6 others" (PLD 2007 Peshawar 179), "Sadiq Husain v. Ghulam Rasul and 6 others" (2011 PCr.LJ 315), "Fazal Karim v. The State and 10 others" (2008 YLR 462), "Noor Zada v. Muhammad Khalid and 6 others" (2007 PCr.LJ 891) and "Mst. Zahida Nasreen v. Additional Sessions Judge, District Sahiwal and 2 others" (2010 PCr.LJ 575) prayed that this petition be dismissed.
5. I have heard the learned counsel for the parties and have gone through the record.
6. If the private complaint filed by the petitioner, the original record of which is available before this Court, is seen, he has claimed himself in possession of Khasra Nos. 2231 to 2239 as a civil suit was decided in favour of his father on 7-2-1979. In para 4 of the complaint he alleged his dispossession by the respondents Nos.2 to 14 on 17-7-2010. The private complaint is filed on 27-7-2010 after about 10 days of the alleged dispossession. No report whatsoever was ever lodged to the police as it is evident from the report submitted by Khalid Mehmood, S.I, Police Station Kallar Kahar dated 16-8- 2010 whereby it was reported that no occurrence as alleged by the petitioner ever took place. The complainant/petitioner has annexed Photostat copy of register haqdaran zameen for the year 2007-2008 showing Shamlat Deh as "Maqbooza Malkaan" in possession of the owners of the village. He has not produced any Khasra Girdawri showing his possession over the disputed portion of the land. In these circumstances, when possession over the disputed portion of land was not proved, the illegal dispossession in these circumstances when penal actions are to be initiated against the respondents cannot, prima facie, be proved, thus, learned trial court rightly dismissed the complaint, as petitioner neither produced copies of the judgments allegedly passed in favour of his father by the civil court nor any Revenue Record.
7. It has now been settled by the Hon'ble Supreme Court of Pakistan in a judgment titled "Waqar Ali and others v. The State through Prosecutor/Advocate-General, Peshawar and others" (PLD 2011 Supreme Court 181) that the complainant is duty bound to state facts which, without extraneous considerations or evidence, satisfy the Court of the existence of every ingredient of alleged offence and without such, a complainant is not entitled to invoke aid of the Court and to foist travails of criminal trial on person accused by him.
8. Right of an individual/citizen is to be dealt with in accordance with law is guaranteed under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Under Article 10-A further right to fair trial 'has been guaranteed recently. It issommonly known to everybody that to level an allegation against a person is easy but to rebut the same is a very difficult task. No doubt, whenever an individual is aggrieved of an act or omission which constitutes an offence by another person, he has the right to get penalized the same in accordance with the relevant provisions provided under the relevant laws but at the same time everybody has the right to be provided a safeguard against his false implication under any such charges with mala fides. Illegal Dispossession Act, 2005, if seen, was enacted with the object to protect the lawful owners and occupiers of the immovable properties from their illegal and forcible dispossessions by the property grabbers etc. But unfortunately these provisions are being utilized by certain people with mala fides to achieve their ulterior motives to convert the civil litigation into criminal one. It is thus, as mentioned above, guaranteed under Article 4 read with Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 that every person/individual/citizen be not only dealt with in accordance with law and no action detrimental to the life, liberty, body, reputation or property of any person shall be initiated except in accordance with law as well as he be provided fair trial. The heavy responsibility thus lies on courts at any stage of the trial to protect the innocent people from their involvement in any such type of litigation either civil are criminal. It is commonly known that due to so many extraneous reasons a very minor litigation either civil or criminal lingers on years and years and innocent people suffer without their being any fault on their part. It has now been settled by this Court as well as the Hon'ble Apex Court of the Country that court should protect innocent people from unlawful and unjustified involvement in such like cases/litigations. In this respect judgment cited above can be referred again "Waqar. Ali and others v. The State through Prosecutor/Advocate-General, Peshawar and others" (PLD 2011 Supreme Court 181), in which their Lordships of the Hon'ble Supreme Court of Pakistan at page 191 in Para 13 observed:- "Courts which have been authorized to try cases under the Act thus have a responsibility to see that the persons named in the complaint have a case to answer, before they are suinmoned to face trial. This course, unfortunately has not been followed in the present case. As a result the appellants unnecessarily, have had to face trouble. Expense and disruption in their lives. In this process the time and scarce resources, of the Court have also been wasted and its docket burdened without cause. It may be clarified that the Court may, in the first instance, issue a notice (rather than summons) to the accused person if it requires clarification or in order to ensure that cognizance is justified."
9. Keeping in view the above discussion, course adopted by the learned trial Court and the conclusion drawn vide impugned order dated 25-8-2010 is lawful, hence, does not call for interference by this Court F in exercise of the writ jurisdiction. Resultantly, this petition being without any force is hereby dismissed.