' MUHAMMAD IQBAL KALHORO, J.--By this order I propose to dispose of the instant revision application filed against the * order dated 25-6-2014 passed by the learned Additional Sessions Judge Kandiaro in a Direct Complaint No,3 of 2014 filed by the respondent No,1 under 3 and 4 of Illegal Dispossession Act, 2005, whereby the learned trial Court has allowed the application under section 7(1) Illegal Dispossession Act, 2005, directing the applicant to hand over the possession of the house situated in Ward No,2 Ayoub Mohalla Kandiaro viz. Property 4-1/4 acres situated in Deh Kandiaro S.No,19 to the respondent No,1 within the period of two days from the date of passing the impugned order and in case of his failure, the Mukhtiarkar (Revenue) was directed to get the possession of the said house from the applicant and hand over the same to the respondent No,1/complainant within a week of the order. In the said order the Mukhtiarkar was also directed to approach Superintendent Police Naushahro Feroze for seeking legal assistance in case of a law and order situation arises hindering the taking over the possession of the said house.
2. The notice on instant application was issued to the respondents, out of whom respondents Nos.2 and 3 being SILO, Police Station Kandiaro and SSP Naushahro Feroze have filed their written statements.
3. The relevant facts in brief, leading to the filing of instant application are that the respondent No,1 is complainant of the disputed property viz. 4-1/4 acres situated in Deh Kandiaro S.No,19 which he had purchased from one Muhammad Waris Jalbani vide registered sale-deed dated 17-3-2008 upon which he had 'constructed houses, one of which comprising two rooms, courtyard and bathroom was lying vacant, when on 1-2-2014 at 4:00 p.m. The complainant and his witnesses were sitting therein, the applicant along with 4/5 unknown persons in police uniform forcibly entered the house and drove the complainant out of the house. The complainant went to police authorities for redressal of his grievances but to no avail, hence he filed the above stated direct complaint.
4. Along with the above mentioned direct complaint, the complainant filed an application under section 7(1) Illegal Dispossession Act, 2005 (for short, Act, 2005), which was heard and decided as stated above vide impugned order.
5. Feeling aggrieved by and dissatisfied with the impugned order the applicant has filed the instant application.
6. Learned counsel for the applicant has contended that the impugned order has been passed by the trial court erroneously as the charge. In the complaint was not yet framed. Per learned counsel the order under section 7(1) Illegal Dispossession Act, 2005 could only be passed during the trial when the Court is satisfied regarding unlawful possession over the disputed property by the accused. According to learned counsel in the present complaint the charge was not framed by the trial Court and only the relevant copies of the case were supplied to the applicant, as such the trial had not commenced which is condition precedent for considering an application under section 7(1) of Act, 2005. In order to emphasize his point he has relied upon the case-laws reported in 2000 SCMR 785, 2008 YLR 1044, 2013 PCr.LJ 953, 2008 PCr.LJ 719, PLD 2011 Lahore 340. He lastly prayed for setting aside the impugned order.
7. Refuting him, the learned counsel for the respondent No,1 contended that impugned order is proper as no illegality has been committed by the trial court while passing the said order.
According to him the trial starts from the stage of submission of challan and taking cognizance of the offence by the Court competent to try the same. He further argued that the trial Court in the present matter, before passing the impugned order, had already taken cognizance on the complaint forwarded by the respondent No,1, therefore, it cannot be said that the impugned order was not passed during the trial. Per learned counsel the Court is competent to pass an order under section 7(1) of Act 2005 before framing the charge which is not requirement of law He has relied upon case-law PLD 1987 SC (AJ&K) 65.
8. Learned A.P.G. For the state has supported the arguments adduced by the learned counsel for the applicant by submitting that expression "during trial" appearing in section 7 of Act is materially important which means that trial Court was competent to pass such order only after the charge was framed which is not the case in the present matter, therefore, he submitted that case may be remanded back with direction to the trial court to hear the parties on the said application and decide the same only after the above requirement is fulfilled.
9. Heard and perused the material.
10. It is not out of place to state here that object for which the Act 2005 was promulgated is to stop and prevent the forced dispossession of owner or occupier of the immovable property by the persons having antecedents in land grabbing or in committing fraud. The procedure under the Act provides filing of complaint under section 3 of the Act where after the trial court has to record the statements of complainant and witnesses so also to call report from the police officials regarding the dispute pending between the parties over the property so that such material could be tentatively looked into for the purpose of summoning the accused persons. Section 4 of the Act empowers the court to take cognizance of the complaint and under section 5 of the Act the procedure for the purpose of investigation is provided. Under section 6 of the Act, the court can act to attach the property until the final decision of the case, if it is satisfied that none of the parties are/were in possession of the property immediately before commencement of the offence and under section 7 of the Act the court has power to grant interim relief.
11. The disputed point agitated by the parties in the instant application pertains to the applicability of Section 7 of Act 2005 which is therefore, reproduced here for ready reference:-- "7. Eviction and mode of recovery as an interim relief.---(1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession.
(2)..................
(3).................
(4).................
(5).................
(6)................
12. The perusal of above section of the Act manifests that the grant of interim relief is subject to the condition "during trial", The expression during trial has been interpreted by the Hon'ble Supreme Court in a case of Haq Nawaz and others 2008 SCMR 785, in following words:- "From a review of above provisions of the court, it is quite clear to us that taking of cognizance of the case by the court' is not synonymous with the commencement of trial in a case. Taking cognizance of case by the court is the first step which may or may not culminate into the trial of the accused. The trial in a criminal case, therefore; does not commence with the taking of the cognizance, of the case by the court."
13. The procedure which leads to the framing of the charge is governed by sections 265(c) and 265(d) of the Criminal Procedure Code. By virtue of section 9 of Act 2005, Criminal Procedure Code is applicable to it, therefore, it is mandatory upon the trial court to comply provisions of sections 265(c) and 265(d), Cr.P.C. Before commencing the trial. Under section 265(c), Cr.P.C, the accused is entitled to be supplied the relevant documents of the complaint in order to enable him to know the exact nature of allegations before he is sent-up to stand the trial. The purpose whereof is to afford the accused sufficient time to study the allegations against him and to prepare his defence if any.
In clause (b) to subsection (2), it is further provided that the copies of the complaint or any other document which has been filed by the complainant shall be supplied to the accused free of cost not latter than seven days before the commencement of the trial. The supply of the relevant copies of the complaint to the accused before seven days of the commencement of the trial has a direct connotation to the framing of charge, which means that the trial of an accused would not start unless the relevant ,documents are supplied to him in terms of section 265(c), Cr.P.C. Which shall then lead to framing of charge under section 265(d), Cr.P.C.
14. Under section 265(d), Cr.P.C; the court, after perusing the police report, the complaint and all other documents and statements filed by the prosecution, is of the opinion regarding availability of sufficient grounds to proceed with the trial, it shall frame a charge in writing against the accused.
The study of above provisions of law shows that the trial would not start until a period of seven days after supplying the relevant copies to the accused in terms of clause (b) to subsection (2) of section 265, Cr.P.C. Is expired and charge is framed, which can be considered as a first step 'towards the commencement of trial.
15. Admittedly in the present case charge has not framed against the applicant, and only he has been supplied the copies of the complaint and relevant documents on the basis of which learned trial court has passed the impugned order. Learned trial court has not attended itself to the condition precedent appearing in section 7 of the Act 2005 before passing the impugned order which is therefore without lawful authority and not sustainable in the eyes of law.
16. I have perused the case-law relied upon by the learned counsel for the respondent, with due respect to the dictum laid therein, I am of the view that the facts and circumstances of the present case are altogether different, hence the same is not applicable hereto.
16(sic). For what has been discussed above, the impugned order is set-aside with the result, the application under section 7 of the Act, 2005 shall be deemed to be pending before the trial court which shall decide it afresh after framing the charge and affording the right of hearing to the parties. The trial court is further directed to complete the above exercise within a period of thirty days of receipt of present order.