' ABDUS SATTAR ASGHAR, J.---Dr.Mukhtiar Hussain, petitioner has invoked the constitutional jurisdiction of this Court under Article 199 through this petition to impugn the order dated 20-12-2011 passed by learned Additional Sessions Judge Khanpur directing the Tehsildar and Halqa Patwari to submit the report.
2. Brief facts leading to this petition are that petitioner lodged a complaint under section 3 of the Illegal Dispossession Act, 2005 against Muhammad Aslam and others in the court of learned Additional Sessions Judge, Khanpur. The learned trial Court after recording the cursory statement of the petitioner and obtaining the report of S.H.O. Supported by report of Tehsildar passed the order dated 6-9-2011, which reads below:-- "From the perusal of complaint, cursory statement of the P. W.1 and other material placed on the file by the complainant, prima facie, the commission of offence is made out against the accused persons. As such, sufficient incriminating material is available on the file to proceed further - against the accused, let the accused persons be summoned through notices for 15-9-2011."
' Pursuant to the order dated 6-9-2011 respondents/accused appeared before the Court on 15-9- 2011 and on 27-9-2011 they lodged an application under section 265-K, Cr.P.C. Alleging that the disputed shops are situated in khata No,510/510 and that the complainant has no concern whatsoever with the said khata and that a civil suit is also pending between the parties. Learned trial Court after hearing the partial arguments on the application filed under section 265-K, Cr.P.C.
Passed the impugned order dated 20-12-2011, which reads below:-- "Partial arguments on application filed under section 265-K, Cr.P.C., heard.
Before proceeding further with the disposal of this application, it is necessary to determine where the disputed property (constructed shop measuring 1-1/4-marlas) mentioned in the complaint is situated in khata No,510 and khata No,512 Mauza Neil Garh, Tehsil Khanpur. Matter pertains to the Revenue Department, a robkar may be issued to the Tehsildar Khanpur, he is directed to submit a clear report showing that where the disputed shop is physically/actually situated, whether it is situated in khata No,510 or it is situated in khata No,512. Report must be clear without ambiguity/supported by the relevant documents of revenue record. He is directed to ask the Halqa Patwari concerned to appear in person with the report on 6-1-2012."
3. It is argued by learned counsel for the petitioner that the learned trial Court after taking cognizance in the private complaint on the basis of cursory statement, reports of Revenue Authorities and the S.H.O. Concerned lawfully summoned the respondents; that although there is no bar on lodging of an application under section 265-K, Cr.P.C. By the accused at any stage of the trial, however, the court has to decide such application on the basis of material available on the record and is not supposed to collect evidence for the accused without providing opportunity to the complainant to prove the charges; that the impugned order of the learned trial Court directing the Revenue Authorities to submit the report is illegal and without lawful authority and liable to set aside.
4. On the other hand, learned counsel for the respondents Nos. 1 to 3 argued that under section 9 of the Illegal Dispossession Act, 2005 provisions of Criminal Procedure Code, 1898 are applicable to the proceedings under the Act. He has further argued that under section 94 of Cr.P.C. Learned trial Court is authorized to direct the Revenue Authorities to submit the report and also to appear in person before the Court. For the purposes of any investigation, inquiry, trial or proceedings under the Criminal Procedure Code 1898.
5. I have given patient hearing to learned counsel for the parties and gone through the record.
6. At the outset it is pertinent to mention that Illegal Dispossession Act, 2005 is a special legislation to protect the lawful owners and A occupiers of immoveable properties from their illegal or forcible dispossession therefrom by the property grabbers. Section 5 of the Act ibid furnishes process of investigation and procedure on a complaint lodged under section 3 of the Act. It will be expedient to reproduce the provisions of section 5 of the Act for ready reference:- "5. Investigation and procedure.---Upon a complaint the Court may direct the officer-in charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court: ' Provided the Court may extend the time within which such ' report to be forwarded in case where good reasons are shown for not doing so within the time specific in this subsection.
(2) On taking cognizable of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay sufficient reasons shall be recorded.
(3) The shall not adjourn the trial for any purpose unless such ado Courturnment is, in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days."
7. Bare reading of above quoted provision makes it crystal clear that the word 'shall' used in subsection (2) of section 5 of the Act directs the trial Court, to proceed with the trial after taking cognizance. There is no cavil to the proposition that accused has got statutory right to lodge an application under section 265-K, Cr.P.C. At any stage of the trial. However, law does not permit the trial Court to enter into investigation to collect evidence for the decision of the application after taking cognizance of the case rather such an application should be decided on the basis of the material already produced by the complainant and available on record. Certainly, decision upon such application on the basis of material so collected by the trial Court itself after taking cognizance of the matter would. Amount to deprive the complainant to prove his case through oral and documentary evidence. Whereas, the object of the powers vested in the Court under section 265-K, Cr.P.C. Is not to stifle the prosecution.
8. Needless to mention that ordinarily guilt or innocence of accused person will depend on totality of facts and circumstances revealed during the trial. The authority vested in the Court under section 265-K, Cr.P.C. Is an exception to the procedure in the trial and is to be construed, strictly.
Reliance be made upon Hashim v. Gul Muhammad and 2 others 2009 PCr.LJ 36.
9. As a sequel to the above I am of the considered view that learned trial Court after taking cognizance of the matter while making the impugned order has exceeded his lawful authority, by entering into investigation for the purpose of disposal of respondent's application under section 265-K, Cr.P.C. Which could have been decided merely on the basis of material produced by the complainant available on the record.
10. For the foregoing discussion and reasons, the impugned order suffering from legal infirmity and made without lawful authority is not tenable, therefore, this writ petition is allowed and impugned order dated 20-12-2011 passed by learned Additional Sessions Judge Khanpur is set aside.