' MEHMOOD MAQBOOL BAJWA, J.-- This order shall also dispose of Criminal Revision No,321 of 2011 titled "RANA MUHAMMAD AHSAN RASOOL v. THE STATE ETC." questioning of order dated 27-7-2011 besides assailing the order dated 19-7-2011 recorded by learned Additional Sessions Judge, Shujabad, whereby vide order dated 19th of July 2011, due to non-appearance of the petitioner (Abdul Majeed), direction was issued to procure his attendance by coercive measures. Order dated 27-7-2011 is subject to challenge in both the revision petitions, whereby the learned trial Court through said order issued direction to the petitioners as well as co-accused to hand-over possession of the property subject matter of the complaint filed under the provision of The Illegal Dispossession Act 200.5 by way of interim measures
2. Necessary facts resulting in filing of both the revision petitions are that respondent No,2 in both the revision petitions filed a complaint under the provision of section 3 of The Illegal Dispossession Act 2005 not only against the petitioners (in both the revision petitions) but also against the other persons with the allegation of taking possession of the property owned by the said respondent (complainant) by adopting means and measures not warranted by law. After recording cursory evidence, learned Additional Sessions Judge Shujabad while evaluating the evidence found sufficient grounds, for proceedings and as such issued process in the name of the petitioners as well as co-accused to appear before the Court. It is the case of the respondent/complainant that the petitioners as well as co-accused put their appearance before the learned trial Court, submitted surety bonds and copies were delivered to them, but later on they opted to remain absent in order to delay the conclusion of trial. Since the attendance of petitioners could not be procured despite issuance of process time and again, therefore, learned trial. Court issued non- bailable warrant of arrest on 19-7-2011 against Abdul Majeed (Petitioner in Criminal Revision No,336 of 2011) which order has been assailed.
3. On the application made by respondent/complainant, the learned trial Court through order dated 27-7-2011 also issued direction to the petitioners as well as co-accused to surrender the possession in favour of the respondent/complainant as interim measures.
4. Learned counsel for the petitioners while assailing the vires of order dated 19th of July, 2011 maintained that issuance of non-bailable warrant arrest against the petitioner (Abdul Majeed) is legally, not sustainable and as such same is to be set aside.
5. On the other hand, learned counsel for the complainant (respondent No,2) maintained that the petitioner after showing initial appearance intentionally absented himself and despite adopting different measures remained absent and as such order regarding issuance of non-bailable warrant of arrest cannot be questioned.
6. It is not disputed that the petitioner (Abdul Majeed) put his appearance before the Court, but later on opted to remain absent for one or the other reason. Perusal of different interim orders clearly suggests that learned trial Court made efforts to procure the attendance of the petitioner but without any success, finding no option but to issue non-bailable warrant of arrest against the petitioner. Though, it was maintained at the instance of petitioner that order regarding issuance of non-bailable warrant of arrest is legally not sustainable but admittedly alleged illegality or irregularity has not been pointed out calling for interference by this Court. If the petitioner being an accused opted to remain absent and that too with mala fide intention in order to delay the conclusion of complaint, which admittedly has to be decided within the period fixed by the statutes itself, then there was no option with the learned trial Court but to issue non-bailable warrant of arrest through impugned order in order to procure attendance of the petitioner who by his conduct hampered the proceedings.
In view of the above state of facts and law, no exception cane be taken to the order dated 19-7-2011 for issuance of non-bailable warrant of arrest against the petitioner (Abdul Majeed).
7. On the application made by the respondent No,2 (complainant), the learned trial Court passed an order under section 7 of The Illegal Dispossession Act, 2005 (Act. XI of 2005), (Hereinafter called as an Act) granting interim relief to the complainant by issuance of direction to the petitioners as well as co-accused to hand over possession of property to respondent No,2 (being owner/occupier) subject-matter of the complaint.
8. Referring to the expression "during the trial" used in section 7 of the Act and seeking help from the dictum laid down in "ASHIQ HUSSAIN and another v. ATHAR SHER and 2 others" (2008 PCr.LJ 719), "EDWARD HENRY LOUIS v. Dr. MUHAMMAD SAFDAR" (2009 PCr.LJ 1359) and RABART alias D.C. v.
ADDITIONAL SESSIONS JUDGE, MIAN CHANNU , DISTRICT KHANEWAL and 7 others"(PLD 2011 Lahore 340), the learned counsel for the petitioners maintained that since trial was not commenced, therefore, the learned trial Court was not competent to pass any order granting interim relief requiring .The petitioners and co-accused to surrender possession in favour of the respondent/complainant.
' On the other hand, learned counsel for the respondent No,2, though, was unable to controvert the legal proposition, but made an attempt to justify the same by referring to the certain interim orders contending that both the petitioners as well as co-accused made it impossible for the learned trial Court to proceed with the trial and as such there was no option with the said Court but to pass the impugned order. Continuing his arguments, the learned counsel for the complainant maintained that the petitioners as well as co-accused though put their appearance, but later on absented themselves after receipt of the copies of documents as required under section 265-C of The Code of Criminal Procedure, 1898 and as such in the peculiar circumstances, the order passed granting interim relief to the complainant is justified.
9. Use of word "During the trial" in section 7(1) of The Illegal Dispossession Act, 2005 (Act XI of 2005) is of significance and importance. There is little cavil with the well-settled proposition of law that trial would commence when accused persons after summoning have been formally charged.
Though, copies were delivered to the petitioners, but admittedly the charge was not framed for any reason and as such question of commencement of trial does not arise at all. Grant of interim relief within the meaning of section 7(1) of the Act is subject to the condition "of during the trial" which admittedly did not commence and as such the order dated 27-7-2011 granting relief under section 7(1) of the Act XI of 2005 is legally not sustainable.
' Rule of law expounded in the Reports cited at bar by the learned counsel for the petitioners substantiate the case of the petitioners to the extent.
10. In view of the matter, the order dated 27-7-2011 is legally not sustainable and was made without lawful authority resulting in setting aside the same and acceptance of both the revision petitions to this extent.
11. Since the order dated 27-7-2011 has oeen set aside on legal premises, therefore, the application made by the respondent/complainant under section 7 of The Illegal Dispossession Act shall be deemed to be pending before the learned Additional Sessions Judge Shujabad, which shall be taken-up after commencement of trial.
12. The learned counsel for the complainant/respondent No,2 maintained that the complaint under The Illegal Dispossession Act is pending since August, 2010, though was required to be decided within 'a period of 60 days, but the complaint is still at initial stage due to non-cooperation of the petitioners as well as co-accused. The provision of section 5(2), Act XI of 2005 cast duty upon the trial Court to decide the case within 60 days and the inordinate delay admittedly is due to the conduct and behaviour of the petitioners as well as co-accused. Therefore, learned Additional Sessions Judge, Shujabad is directed to decide the complaint expediously but not later than 31st of October, 2012. #EndJudgment