1. ' MUHAMMAD SHAFI SIDDIQUI, J.---The issue in this revision application is arising out of order passed by VIth Additional Sessions Judge Hyderabad in Cr. Complaint No. 32 of 2011 pursuant to application under section 3 and 4 of Illegal Dispossession Act filed by the applicant in respect of Property bearing H.No.G/2739 situated at Mirpurkhas Road, Kalal .Area Hyderabad. Per learned counsel the applicant and respondent No.1 entered into an agreement of sale dated 16-1-2010 pursuant to aforesaid property for total sale consideration of Rs.40,00,000. Per learned counsel for applicant he received an amount of Rs.15,30,000 in advance whereas rest of the payment was to be paid at the time of registry and at the time of handing over possession of subject property. He submits that the applicant was resident of Karachi and on specified/crucial date of 1st November, 2010 the accused neither paid balance sale consideration nor appeared before the Registrar nor presented any evidence for payment of balance amount which resulted in issuance of notice by applicant which was served through TCS on 28-1-2011. Learned counsel submits that subsequent, to this notice they illegally and unlawfully occupied the premises i.e. The house in question and when it was revealed to them they filed subject application under sections 3 and 4 of Illegal Dispossession Act.
2. ' Pursuant to said application that was filed under section 3 and 4 of Illegal Dispossession Act, the order of "inquiry" was passed which inquiry was conducted by the officer, but was not officer-in- charge as required. It is the contention of the learned counsel for applicant that the order of inquiry was not the product of law which is required under sections 3 and 4 of Illegal Dispossession Act, 2005. As only the "investigation" was required to be forwarded within 15 days to the concerned court. Learned counsel further submits that even for the sake of arguments if that inquiry is considered as investigation, then that inquiry too is not impartial as the witnesses of only respondents have been examined and there is no independent and impartial witness examined by the Investigating/Inquiry Officer. Although a number of witnesses have been shown by the applicant in his application under section 3 and 4 of Illegal Dispossession Act, 2005 which are six in number but none of them have been examined. Learned counsel for- applicant submits that the Inquiry Officer has failed to conduct the investigation in accordance with law and the report that had been submitted by the Inquiry Officer appears to be declaratory report wherein the Inquiry Officer has suggested the Court that it is a case of civil nature. It was observed in the report without examining the material witness that the possession was handed over by the applicant himself without taking balance sale consideration. Learned counsel for applicant submits that the order passed pursuant to this report has been impugned in this case' and since the inquiry/ investigation is not in accordance with law the order passed is also illegal and unlawful as the cognizance was required to be taken by the Sessions Judge under section 5 of the Illegal Dispossession Act 2005.
3. Learned counsel submits that there is not an iota of evidence whereby it could be ascertained that the possession of the subject premises was handed over by the applicant himself.
4. ' On the other hand learned counsel, for respondent submits that the inquiry/ investigation was conducted pursuant to the order of the Sessions Judge and number of witnesses have been examined and pursuant to such examination the inquiry report was submitted for the assistance of the court. Per learned counsel the inquiry report reveals that the possession of the subject premises was handed over by the applicant himself and as such there is no question of Illegal Dispossession under the subject law. Limed counsel further submits that in view of above inquiry/Investigation this revision does not lie as the case of Illegal Dispossession Act, 2005 is not borne out of the inquiry report. Learned counsel for respondent has relied upon three case laws reported in 2012 P.Cr.L.J 52, 2012 PCr.LJ 423 and 2012 PCr.LJ 581 wherein it is held that since the Illegal Dispossession is not proved therefore, the application under section 3 and 4 is not maintainable.
5. ' I have heard the learned counsel and perused the record.
6. ' As I see, the inquiry report pertaining to the application filed by the applicant with regard to the Illegal Dispossession Act it appears to be one sided as none of the impartial witnesses have been examined. Two independent witnesses which are allegedly shown to be examined themselves claimed that they are related to Muhammad Ismail (respondent). Those two independent witnesses are Zulfiqar Ali and Hussain Bux and they have categorically admitted that Muhammad Ismail who is respondent and alleged purchaser is related to them. There is not an iota of evidence in the entire inquiry report and evidence that could establish that the possession of the subject premises ,was handed over to the respondent by the applicant himself. It does not convince me that the applicant who has to receive Rs.2.5 million would hand over the possession of subject premises without realizing huge amount or without even asking for surety of that amount. I cannot go into minute details of the payment as the findings on such issue might prejudice the case of either party before the Civil Court in suit for specific performance which is pending. I would therefore confine myself to this revision to the extent of Illegal Dispossession only.
7. ' I have seen the agreement wherein no such element of handing over possession appears nor subsequently it is established. If such possession was handed over by applicant smoothly why the respondent did not ask for receipt of handing over/taking over possession. This is a burden and has to be discharged by the respondents as to how and in what manner he came in possession which he has failed.
8. ' Learned counsel for applicant has relied upon the case of Rahim Tahir reported in PLD 2007 SC 423 and claims that the facts of this case are similar to the case in hand. He has also relied upon 2010 YLR 1982 when it was held that. The applications under Illegal Dispossession Act 2005 cannot be decided on the basis of presumption and assumptions and very object of Illegal Dispossession would come to an end. The case law cited by the counsel for the respondent are not at all relevant and are distinguishable from the facts of the present case.
9. ' We therefore, declare the inquiry report as improper and therefore, set aside the same along with impugned order and direct the concerned officer incharge to conduct impartial investigation as prescribed under section 5 of the Illegal Dispossession Act, 2005 and investigate the issues which are the subject-matter of the application under sections 3 and 4 of Illegal Dispossession Act, 2005 by recording the evidence of impartial witnesses of the area and also witnesses that have been shown by the applicant in the application under Illegal Dispossession Act, 2005. The investigation report shall only be to the extent of investigation and no proposal of any nature should accompany such investigation as it is the prerogative of the Sessions Judge to pass proper order pursuant to such inquiry report.
10. ' This revision application is thus allowed in the above terms.