Brief facts giving rise to the institution of present writ petition are that respondent No.2 instituted a criminal complaint under Section 3 of the Illegal Dispossession Act, 2005 on 05.12.2006 against the petitioner and respondents No.3 to 5. Cursory statements of Malik Jamil Iqbal/complainant as PW- 1, Ch. Khalid Bashir as PW-2 and Ijaz Hussain as PW-3 were recorded by the learned trial Court, Sialkot. Copies under Section 265-K Cr.P.C. Were delivered to the petitioner as well as respondents No.3 to 5 on 18.10.2007. Vide order dated 2.11.2007 the petitioner and respondents No.3 to 5 were summoned through bailable warrants by the orders of learned trial Court, Sialkot. Vide order dated 25.1.2008 respondents No.3 to 4 were formally charged. Respondent No.2 filed application under Section 7 of the Illegal Dispossession Act, 2005 for an interim relief that he be put into possession qua the dispute property. After hearing arguments vide order dated 25.1.2008 it was ordered that the possession be delivered to the complainant as an interim measure. SHO was also directed that respondent No.2 be put into the possession of the disputed property. The petitioner has also assailed the impugned orders dated 2.11.2007, 25.1.2008 and order dated 2.2.2008 passed by learned trial Court, Sialkot by filing the present writ petition.
2. It is contended by learned counsel for the petitioner that the petitioner has purchased land measuring 12 marlas for a consideration of RS.6,60,000/- from one Naveed Iqbal from Khata in which Khata land of respondent No.2 also falls through a registered sale deed in the year 2003.
Later on the petitioner sold 4 marlas of land to one Mst. Rehana Ghafoor and 4 marlas to one Qadeer Ahmad in the year 2005. Mst. Rehana Ghafoor has further sold the land to one Shahid Mahmood through registered sale deed No.620 Bhai No.1, Jild No.2001 dated 23.2.2007. It is further contended that the possession of the petitioner is based on a valid titled document and his possession over the disputed property is in no way illegal and unlawful. It is further contended by learned counsel for the petitioner that while passing the impugned orders dated 02.11.2007, 25.01.2008 and 02.02.2008 learned trial Court, Sialkot has ignored the judgment reported as PLD 2007 Lahore 231. It is further alleged that the petitioner neither belongs to Land Mafia nor property grabber. It is further contended by learned counsel for the petitioner that impugned order has been passed without deciding his application under Section 265-K Cr.P.C.
3. On the other hand, learned counsel for contested respondent No.2 supported the impugned order.
4. Heard. Record perused.
5. Respondent No.2 nowhere in his complaint as well as in his cursory evidence stated that the petitioner and respondents No.3 to 5 belongs to Qabza Group or property grabbers. As there is no material produced by respondent No.2 in this regard that the petitioner belongs to land mafia or property grabbers, complaint under Section 3 of the Illegal Dispossession Act, 2005 was not competent as held in a celebrated judgment of Full Bench of Lahore High Court, Lahore reported as "Zahoor Ahmad and 5 others v. The State and 3 others" (PLD 2007 Lahore 231). The relevant portion is reproduced herein below:- "7. For the purpose of providing guidance to all the Courts of Session in the Province of Punjab we declare as follows:-
(i) The Illegal Dispossession Act, 2005 applied to dispossession from immovable property only by property grabbers/Qabza Group / land mafia. A complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible or justifiable claim. In the case of an individual it must be the manner of execution of his design which may expose him as a property grabber.
(ii) The Illegal Dispossession Act, 2005 does not apply to run of the mill cases of alleged dispossession from immoveable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Group/land mafia, i.e. Cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an on-going private dispute over the relevant property.
(iii) A complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being regulated by a civil or revenue Court.
All the Courts of Session in the Province of Punjab are directed to examine all the complaints under the Illegal Dispossession Act, 2005 pending before them and to dismiss all those complaints forthwith which are found to be not maintainable in terms of the interpretation of the said law rendered by us through the present judgment."
This judgment of Full Bench of Lahore High Court, Lahore has been upheld by the Hon'ble Supreme Court of Pakistan in case law reported as "Bashir Ahmad vs. Additional Sessions Judge, Faisalabad and 4 others" (PLD 2010 Supreme Court 661). The relevant portion is reproduced herein below:- "It has been conceded before us by the learned counsel for the petitioner that no material is available with the petitioner to establish that respondents Nos.2 to 4 belonged to any Qabza Group or land mafia or that they had the credentials or antecedents of being property grabbers. In view of the discussion made above the impugned acquittal or respondents No.2 to 4 recorded by the learned Additional Sessions Judge, Faisalabad upon acceptance of their application submitted under Section 265-K, Cr.P.C. Has been found by us to be entirely justified and dismissal of the petitioner's writ petition by the learned Judge of the Lahore High Court, Lahore has also been found by us to be unexceptionable. In the circumstances of this case mentioned above we have entertained an irresistible impression that through filing of his complaint under the Illegal Dispossession Act, 2005 the petitioner had tried to transform a bona fide civil dispute between the parties into a criminal case so as to bring the weight of criminal law and process to bear upon respondents No.2 to 4 in order to extract concessions from them. Such utilization of the criminal law and process by the petitioner has been found by us to be an abuse of the process of law which cannot be allowed to be perpetuated."
According to the latest view of the Hon'ble Supreme Court of Pakistan in case law titled as "Habibullah and others vs. Abdul Mannan and others" (2012 SCMR 1533), the relevant portion is reproduced herein below:- "Complainant while appearing as P.W.1 has not stated a single word that the appellants belong to a Qabza Group and were involved in such activities, so it is the complainant side who has failed to establish that the appellants belong to Qabza Group or they were land grabbers. The complainant side has not produced any evidence oral or documentary to establish that the appellants had the credentials or antecedents of being property grabbers. So, it was a dispute between two individuals over immoveable property and as per allegation the appellants have taken illegal possession of the property, being rightful owners, from the tenant who has taken the property on rent and committed the default in payment of rent and electricity bills inasmuch as the appellants do not belong to a class of property grabbers or Qabza Group and no case was made to the judgment of a Full Bench of the Lahore High Court in "Zahoor Ahmad and others v. The State and others" (PLD 2007 Lahore 231) wherein it has been held that the Illegal Dispossession Act, 2005 was restricted in its scope and applicability only to those cases where a dispossession from immovable property has allegedly come about through the hands of a Groups/land mafia and the said Act was being invoked and utilized by the aggrieved persons against those who have credentials or antecedents being members of the Qabza Groups or land mafia. It was further held that the Illegal Dispossession Act, 2005 has been found to be completely nugatory to its contents as well as objectives. The aforesaid view was upheld by this Court in the case of "Mobashir Ahmad v. The State" (PLD 2010 SC 665). In view of the case-law referred above, it is established the credentials or antecedents of Qabza Group and are involved in illegal case in hand it has been found by us that there is no evidence oral or documentary to establish that the appellants belong to the Qabza Group or land grabbers. Even otherwise no such allegation has been made against the appellants in the complaint filed by the respondent Abdul Manan or in the FIR for the same incident lodged on the next day, or by the P.Ws in their depositions made by them before the learned trial Court. Even P.W.3 Azhar Hussain, I.O. During the cross-examination has admitted that he had never heard about the appellants involvement in such like activities or their belonging to the group of land grabbers or Qabza Group rather the complainant is involved in such like cases."
In other judgment titled as "Muhammad Ihsan and others v. Muhammad Yousaf and others" (2007 MLD 1034), it has been held as under:- "Beside the language of the preamble, a Full Bench of this Court has interpreted the term "Property Grabbers" used in the said Act as Qabza Group/Land Mafia and made it obligatory for the Court of Session to prima facie satisfy itself that the persons complained had the credentials/ antecedents of property grabbing. In the case in hand, as noted above, there is no allegation of this kind against the petitioners thus, the impugned order directing return of possession to the respondents was coram non judice. Petitioners might have been forcibly dispossessed from the land in question but they have other remedies available to them under ordinary law of the land, as pointed out by the Full Bench of this Court in the case, above referred, in the case of Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lahore 231 to which they may have resort for restitution of their possession, if proved. Scan of record and impugned order revealed that dispute amongst the parties was correctly decided and jurisdiction under the Illegal Dispossession Act, 2005 was wrongly assumed/exercised."
Even otherwise conjunctive reading of Section 7(1) and Section 8 of the Illegal Dispossession Act, 2005 would show that passing of order under Section 7(1) is only discretionary with the Court. Had it not been so, there was no occasion for the legislature to have incorporated a provision for putting the petitioner in possession under section 8 of the said Act on conclusion of trial. Therefore, in my opinion, the word "shall" used in section 7(1) will be read as "may" inasmuch as it is only a directory provision.
6. As the main complaint was not competent and maintainable hence the impugned order whereby interim relief of possession was given to respondent No.2 was also illegal. The impugned order has been passed without deciding the application under Section 265-K Cr.P.C. Which is also an illegality on the part of learned trial Court. It is also noticed by this Court that the evidence available in the shape of cursory statement has not been discussed in the impugned order.
Reliance upon the report of SHO is also unwarranted. The impugned order is without assigning any reason even relevant provision of law is neither referred nor discussed.
7. For what has been discussed above, this writ petition is accepted and the impugned orders dated 02.11.2007, 25.01.2008 and 02.02.2008 are set aside and complaint under Section 3 of Illegal Dispossession Act, 2005 being not maintainable, is dismissed in the light of judgments reported as PLD 2007 Lahore 231, PLD 2010 Supreme Court 661 and 2012 SCMR 1533, as referred above, with no order as to cost.