' SIKANDAR ZULQARNAIN SALEEM, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A, Cr.P.C., petitioner has called in question the order 26-5-2014 passed by learned Additional Sessions Rojhan, District Rajanpur in a private complaint filed under section 3 of Illegal Dispossession Act, 2005, whereby the petitioners and pro forma respondents were directed by the learned trial Court to hand over the possession of the land in dispute to the complainant/respondent No.3 within the period of ten days.
2. The background leading to the filing of the instant writ petition is that complainant/ respondent No.3 Burhan Khan has filed instant complaint under section 3 of the Illegal Dispossession Act of 2005 with the assertions that land subject of complaint situated in village kacha Mianwali No.1, Tehsil Rojhan, District Rajanpur is owned by him along with other family members and respondents/accused persons have no concern whatsoever with it. On 20-5-2012 at 9.00 a.m., respondents/accused persons while armed with deadly weapons came at the spot in the presence of the complainant and they forcibly occupied the land while dispossessing complainant along with his other family members, in the presence of injunction issued by Civil Court Rojhan.
After recording the cursory statement of the complainant and going through the report submitted by the Police concerned, the learned Additional Sessions Judge, Rojhan has passed the impugned order dated 26-5-2014 which is reproduced herein below:-- "The contents of complaint, summary evidence of the complainant, police report and documents brought on file by the complainant and especially keeping in view the order dated 29-1-2014 passed by District Co-ordination Officer/District Collector Rajanpur in Writ Petition No. 1242 of 2013 titled Ali Dost etc versus District Collector Revenue and others in the light of order dated 7-11-2013 passed by his lordship Mr. Justice Atir Mehmood, Judge, Hon'ble High Court, Multan Bench and also keeping in view the above discussions and further above referred case-laws, complainant is entitled for interim relief under section 7 of Illegal Dispossession Act, 2005. So, the accused/ respondents are directed to hand over the possession to the complainant/owner within the period of ten days, failing which S.H.O. Police Station Bangla lcchra is directed to get vacated the land from the possession of accused/persons complained against and put into possession Burhan-ud- Din owner/complaint. Petition accepted." 3.
3. It is mainly contended by learned counsel for the petitioner that no proof of ownership or of possession has been tendered by the complainant/respondent No.3 justifying his claim, which must have been considered by learned respondent No.2. According to Hama bandies from 1918 to till now the possession is in the hands of petitioner and pro forma respondents. Respondent complainant/owner registered the criminal case bearing F.I.R No.62/2012 dated 21-4-2012 under sections 447/148/149 P.P.C. At Police Station Bangla Ache, against the petitioner and pro forma respondents; that order of learned trial court is against the law, facts and justice, that learned Judge exercised his jurisdiction by failing to take into consideration that claim of respondent No.3 does not fall under the provision of section 3 of Illegal Dispossession Act, 2005 and misapplication of law cannot be allowed to remain intact.
4. Heard. Record perused.
5. The law moot involved in this petition is that, whether a learned trial Court can pass interim order for restoration of possession under section 7 of the Illegal Dispossession Act, 2005 before the commencement of the trial. For better appreciation of the Section 7 of the Illegal Dispossession Act, 2005 is reproduced as under:- "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. Use of word by the legislature "during the trial" under section 7(1) of Illegal Dispossession Act, 2005 is of significant importance. There is little cavil with the well-settled proposition of law that taking of cognizance is not commencement of the trial. Trial of a case commences with the framing of the charge against the accused.
7. Though copies were delivered to the petitioner under section 265-C of Cr.P.0 yet admittedly, charge was not framed for any reason 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 "during the trial" which admittedly did not commence and as such the order dated 26-5-2014 granting interim relief under section 7(1) of the Act is legally not sustainable.
8. For what has been discussed above, the order dated 26-5-2014 is legally not sustainable and was made without lawful authority and application of the judicial mind resulting in setting aside the same and acceptance of this petition.
9. Since the order dated 26-5-2014 has been set aside and the case is remanded to the learned trial Court for deciding the same in accordance with law. The application made by respondent No.3/complainant under section 7 of the Illegal Dispossession Act shall be deemed to be pending before the learned Additional Sessions Judge Rojhan District Rajanpur, which shall be taken up after commencement of trial.
10. The complaint filed by respondent No.3 under the Illegal Dispossession Act is pending since 3-5- 2012 and copies of the complaint, statement of the complainant and other documents as required under section 265-C Cr.P.0 have been delivered to the accused on 1-7-2013 by the hectic efforts made by the learned trial court as the petitioner and the pro forma respondents are lingering the matter on one pretext or the other by absenting themselves from the court and are causing hindrance in the commencement of trial.
11. The complaint is still at initial stage due to the non co-operation of the petitioner as well as the co-accused/pro forma respondents. The provision of section 5(2), of the Act casts duty upon the trial Court to decide the case within 60 days and the inordinate delay admittedly due to conduct and behaviour of the petitioner as well as co-acctised/pro .Forma respondents. Therefore, the learned Additional Sessions Judge, Rojhan District Rajanpur is directed to decide the complaint expeditiously preferably within two months, after receipt of this order.