ALI BAQAR NAJAFI, J, - The petitioner through this petition, challenges order dated 24.1.2011 passed by the learned Additional Sessions Judge, Rawalpindi, whereby complaint filed by Muhammad Ismaeel and others under Section 4 of the Illegal Dispossession Act, 2005 was dismissed.
2. Brief facts giving rise to the filing of this writ petition are that the petitioner and others filed a complaint under Section 4 of the Illegal Dispossession Act, 2005 with the assertion that their mother Mst. Khursheed Begum was the owner of the property, who died in the year 1984 and after her death, Muhammad Ismaeel were residing in the said house, who about 3 years prior to filing of complaint left for U.K. In connection with medical treatment and is now in London. Respondent No. 1 about four months prior to filing of the complaint occupied the said house without the consent of the complainant. The attorney of the complainant persuaded accused respondents to vacate the house but they refused. The complainant appointed Ch. Ghulam Murtaza, Advocate to prosecute their cases and look after the said property and on the basis of power-of-attorney, the private complaint was lodged.
3. After recording cursory statement, report from the concerned SHO was sought. Thereafter, the accused/respondents Nos. 1, 2 and 4 were summoned to face trial vide order dated 20.11.2008, out of those accused- respondents respondent No. 1 failed to appear who after completion of all the legal codal formalities was declared proclaimed offender vide order dated 6.2.2010.
4. Charge was framed against the accused-respondents, who pleaded not guilty and claimed trial.
The complainant produced oral as well as documentary evidence comprising of Provisional Transfer Order, Transfer Order, Property Tax Documents, Power-of-Attorney and Report under Section 173, Cr.P.C. Statements under Section 342, Cr.P.C. Of the accused-respondents were recorded. The learned Trial Court after hearing the parties passed the above-said order. Being aggrieved of the same the instant writ petition has been filed by the petitioners.
5. The learned counsel for the petitioners contends that the impugned order is against the law and facts of the case; that the learned Trial Court has wrongly dismissed the complaint without application of judicious mind, summarily and arbitrarily; that no legal title qua the house in question lies with the respondents; that registered sale-deed, mutation, electricity bill, etc. Are the proof of title and ownership of the petitioners but the learned Additional Sessions Judge passed the above-said order in hasty, perverse and fanciful manner; that the learned Trial Court completely ignored die spirit of the Illegal Dispossession Act whereas the learned Court although admitted that the respondents were in illegal possession yet it did not accept the complaint; that the learned Additional Sessions Judge while holding that there is civil litigation pending between the parties with respect to the house in question, has failed to ignore that suit was filed by respondent No. 3 more than one year of the filing of complaint, hence writ petition is liable to be accepted. Reliance was placed upon Muhammad Akram and 9 others Vi. Muhammad Yousaf and another (2009 SCM R 1066) and Shahabuddin Vi. The State (2010 SCJ 764).
6. Conversely, the learned counsel for the respondents submits that during the pendency of civil suit the proceedings under Illegal Dispossession Act, 2005 cannot be continued; that real brother namely Ishaq and Shafiq have sold out their property to the respondents; that suit for declaration with specific performance and permanent injunction was filed against the petitioner, hence writ petition is liable to be dismissed.
7. I have heard the learned counsel for the parties and perused the available record.
8. Admittedly, there was no direct evidence against the respondents under Illegal Dispossession Act. Pendency of civil suit is also admitted. Even lodging of F.I.R. No. 581, dated 2.9.1981 under Sections 419, 420, 467, 468, 471, 448, 380, 411 of the Pakistan Penal Code registered at Police Station, Naris Khan, Rawalpindi have been admitted by PW-2 wherein respondent No. 3 and others were acquitted. The ingredients of Illegal Dispossession Act, 2005 requires the complainant to establish actual ownership, entry of accused persons into the property and that too without lawful authority with intention to dispossess or grab or to control or occupy the property. In this view of the matter, this writ petition having no merit is dismissed.