SPED AFSAR SHAH J:- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, Fahidullah and three others, the petitioners, have impugned the order dated 14-6-2014 passed by learned Additional Sessions Judge-I Bannu, whereby their application for dismissal of the complaint on the ground of maintainability was disallowed.
2. We have heard arguments of learned counsel for the petitioners in motion and gone through the record appended with the petition.
3. It appears from the record available on file that on 15/2/2014, Mst. Dil Pazir Jan, the respondent/complainant, filed a complaint against Fahidullah and three others, the petitioners/respondents, under section 3 of the Illegal Dispossession Act 2005, on the ground that she has been forcibly dispossessed by the respondents/petitioners from the premises indispute bearing Khasra No. 463 situated in the local limits of Sokari Zabta Khan Bannu.
4. During the proceedings conducted by the learned Trial Court, reports of the Investigating Officer and Patwari circle alongwith statements of PWs were made available when in the meanwhile, the petitioners/respondents moved the application for dismissal of the complaint which was vehemently resisted by the respondent/complainant vide order herein impugned.
5. From the very outset, learned counsel for the petitioners argued that since the statement of the complainant has not been recorded on oath, therefore, the complaint is not maintainable. He added that it is the requirement of law as a first step that statement of the complainant under section 200 Cr.PC has to be recorded on oath and that by not recording statement of the complainant on oath, the learned Trial Court has landed into the fields of error.
6. Admittedly and as is evident from the record, the learned Trial Court has recorded statement of the complainant without administering oath to her, but for the proceedings under the Illegal Dispossession Act 2005, it was not an essential requirement.
In a case titled Allah Wasapa and others..Vs..Sikandar Hapat and others (2012 SCM R 193), the trial Court even did not record statement of the complainant in the first instance, but it was observed by their Lordships that the same was a procedural irregularity warranting interference but it did not warrant dismissal of the complaint.
Similarly, in another case titled Shahabuddin..Vs...The State (2010 P.Cr.L.J.422 (Karachi), it has been ruled that it is not an essential requirement for proceedings under the Illegal Dispossession Act, 2005 that statement of the complainant be recorded before taking any other step therein, however, after the Court decides to take cognizance, then it must start to record his statement under section 200 Cr.PC.
Again in a case titled Rana Muhammad Akram Khan..Vs..Special Judge, Anti-Corruption Provincial, Faisalabad and others (2007 YLR 260 (Lahore), non-recording of statement of the complainant by the Court on receiving the private complaint was turned down as an irregularity curable under section 537 Cr.PC.
Deriving wisdom from the above quoted precedents, the prayer of the petitioner for dismissal of the complaint on the ground of non-recording statement of the complainant on oath is turned down.
7. Adhering to the contention of the petitioner that the complainant was having no case and that she has filed the same malafidely, suffice it to say that in view of the record so far made available by the learned Trial Court, the objection at this stage cannot be sustained. Let the complainant/respondent be given an opportunity to prove the contents of her complaint by adducing evidence and in which respect the learned trial Judge in the order herein impugned has already opined and rightly so.
8. In view of the above, the petition being without any substance stands dismissed.