1. SALMAN HAMID, J.---This criminal revision application has emanated from the impugned order dated 27-6-2010 and 17-7-2010. The first impugned order was passed by the 7th Additional Sessions Judge, Larkana, by observing that the application of the applicants herein for restoration of possession was premature inasmu ch as that till such time the charge was not framed and evidence was not recorded and therefore, the 7th Additional Sessions Judge, Larkana, was of the opinion that it was not possible for him to find out as to whether the respondents herein had occupied the land of the applicants or that the applicants were the owners of the land from where they were allegedly dispossessed.
2. The second impugned order dated 17-7-2010 was passed on an application moved by the applicants under section 7 of the Illegal Dispossession Act, 2005, and on another application moved under section 539-B, Cr.P.C. The learned 7th Additional Sessions Judge, Larkana, dismissed both the applications on the ground that entire evidence of the parties has been concluded and the matter is now fixed for arguments.
3. It was argued by the learned counsel for the applicants that since it has come on record through evidence that the land which is the subject-matter of the present criminal revision application and also of the pending Criminal Complaint No.10 of 2009, before 7th Additional Sessions Judge, Larkana, as an interim measure as provided under section 7 of the Illegal Dispossession Act, 2005, they were entitled to the re-possession of the land as an interlocutory/interim measure. It was also argued that since the respondents in their evidence have stated that the applicants have not been dispossessed from their land, restoration of its possession to them would not be to anybody's detriment.
4. On the other hand, the learned counsel appearing for the respondents vehemently opposed the criminal revision application and argued that since the entire evidence has been recorded and the case is fixed for arguments on 18th of this month, this criminal revision application is not maintainable and the fate of the entire Criminal Case No.10 of 2009, would be decided very soon.
5. Therefore, it was agitated that this application be dismissed. Only this much was argued by the learned counsel for the respondents.
6. Heard.
7. The provisions of sections 435 and 439, Cr.P.C. Would make it abundantly clear that the High Court would call for record and proceedings from the inferior criminal courts to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by such inferior court. Therefore, while exercising powers under sections 435 and 439, Cr.P.C., the applicant must make out a case to show that either the order of the inferior court is incorrect, illegal or lacks proprietary and that the finding of such inferior court is not in order.
8. Bare perusal of the impugned orders would show that the same have been passed by the 7th Additional Sessions Judge, Larkana, after appreciating all the pros and cons of the criminal complaint and discretion was exercised justly and prudently. It is also clear that the court below has exercised discretion while dismissing the application of the applicants inasmuch as that the provisions of section 7 of the Illegal Dispossession Act, 2005, clearly stipulates that, "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 the case may be in possession".
9. Since in the criminal complaint entire evidence has been concluded and it is fixed for final arguments, the process, "during trial" in my opinion has come to an end and therefore, "as an interim relief" the possession of the land, which is the subject-matter of Criminal Complaint No. 10 of 2009, and that of, the present criminal revision application at this terminal point would not be suitable.
10. In my opinion the stage where the benefit of section 7 of the Illegal Dispossession Act, 2005, could have been given to the applicants has passed and has now reached to the stage where the provisions of section 8 of the Illegal Dispossession Act, 2005, have become active inasmuch as that on conclusion of, the trial, if the court would find that an owner or occupier of the land was illegally dispossessed the court would restore the possession of the land to the owner if not restored at an interim stage under section 7 of the Illegal Dispossession Act, 2005.
11. Similarly, since all the evidence as to the ownership of the land under point has come on record, carrying out exercise under section 539-B, Cr.P.C. At this belated stage would be of no material significance. Now that the trial Court is equipped with all the documents, necessary for the disposal of the criminal complaint, it would not be prudent to undergo and/of indulge into unnecessary exercise of appointing any person to investigate into the matter for site inspection and find out who is in possession.
12. Since this court is not sitting to judge and give decision on the ownership of the land in dispute, which is the function of the trial Court and that no illegality, patent or otherwise has been shown to have been committed by the trial Court while exercising discretionary powers, I do not find any merits in the present criminal revision application and dismiss the same.