MRS. SYEDA TAHIRA SAFDAR, J.---The petitioner Muhammad Qasim is before this court to question order dated 31st December, 2013 of Additional Sessions Judge-VI, Quetta, whereby the trial Court allowed the complainant Muhammad Naqi to withdraw his complaint, and declined the request of the petitioner to array him as complainant in place of the complainant Muhammad Naqi.
2. The facts collected from the papers available in the case file that one Muhammad Naqi, (present respondent No. 2), approached the court to report his dispossession from the premises by filing a complaint under section 4 the Illegal Dispossession Act, 2005 (hereinafter referred "The Act, 2005") against Ahsan Raza (present respondent No. 1). The complaint was with the assertions that the respondent No. 1 (Ahsan Raza) forcibly dispossessed him and his family from the questioned premises on 17th February, 2009. The trial Court i.e. Additional Sessions Judge-II, Quetta took cognizance of the matter, but before framing of charge the present petitioner entered into the picture with a request to include him in the list of the complainant. The trial court vide order dated 22nd July, 2009 though declined the request of the petitioner (Muhammad Qasim), but allowed the complainant Muhammad Naqi to withdraw his complaint, with an order of discharge of the accused. This order was questioned before this court by Muhammad Qasim (present petitioner) and vide judgment dated 8th January, 2010 this court held that simplicitor withdrawal of the complaint could not be allowed, rather the order must state the grounds on which it was allowed.
Consequent thereto the order dated 22nd July, 2009 was set aside and the case was remanded to the trial court with the direction to proceed with the matter in accordance with the relevant law.
Further, the applications pertained to addition of Muhammad Qasim as party to the proceedings, and freezing of surplus accounts were deemed to be pending, and to be decided afresh.
3. This order was assailed before honourable Supreme Court, who without going into merit of the case vide order dated 2nd February, 2010 directed the trial Court to decide the matter on hearing of the parties. The trial Court in compliance heard the parties, and vide order dated 26th April, 2010 accepted the request on part of the complainant to withdraw his complaint, but declined the request of Muhammad Qasim (present petitioner) to include him in the proceedings. The grievance subsisted, and Muhammad Qasim (present petitioner) was before this court, but the matter was again remanded to the trial Court vide order dated 26th August, 2013 with the direction to expedite the matter and decide it strictly in accordance with law. The trial Court in compliance thereof vide order dated 31st December, 2013 arrived to the decision that the applicant (intervener) failed to make out a case to join him as party to the proceedings. Further, the statement of the counsel for the complainant that the complainant did not intend to proceed with the complaint against respondent No. 1, and also unable to produce any evidence in support of his case was considered along with the observation that the dispute between the parties is of civil nature, thus.
The complaint was ordered to be dismissed. The grievance still subsists, hence the instant petition.
4. The petitioner Muhammad Qasim questioned the impugned order while contending that the trial court wrongly observed that the dispute pertained to ownership of the property, rather the question was of illegal dispossession, which was to be dealt with in accordance with law. Further, once the cognizance of the case was taken under section 5(2) of the Act, 2005; then the proceedings were to be held with a decision on merit as provided by the law. It was contended that the complaint, due to non-availability of Muhammad Naqi (the complainant), would not fail, as he (petitioner) being the owner, and for himself and on behalf of Muhammad Ayub, the administrator of the school, was before the court to pursue the case. Thus the trial court was under obligation to allow him (petitioner) to proceed with the matter.
5. The learned counsel for the petitioner argued his case at length. He mainly stressed for an order to get the complaints, one filed by the petitioner and the other filed by Muhammad Naqi, consolidated. It was with the assertion that the matter in issue in both the complaints were the same and till date eleven witnesses were produced and their statements were recorded, while several documents were made part of the record in the other complaint. A common decision describe to be the basic requirement for final adjudication of the matter. In addition the admission made in the civil suit filed by the respondent for possession was referred to assert that it also established the right of the petitioner.
6. The learned Deputy Prosecutor-General (DPG) was only of the view that the dispute between the parties was of civil nature, therefore, to be dealt with under the civil law. Further, inclusion of a stranger in a criminal case was objected as not permitted by the law.
7. The learned counsel for respondent No. 1 submitted his arguments in writing coupled with a number of documents, mostly consisted of orders and decisions of this court, along with copy of the complaint filed by the present petitioner and Muhammad Ayub against several persons including respondent No. 1, which is still subjudice.
8. Though the complaint filed by Muhammad Naqi pertained to the residential flats constructed over the building wherein a school, described with the name of Quetta Public High School and College, Shah Zaman Road, Joint Road, Quetta, (The School), was existed. Not only the business of the School, but the building and the land underneath was matter in dispute between the parties.
The petitioner described the property as joint holding of Muhammad Nazim (father of Muhammad Naqi), Muhammad Ayub, Muhammad Qasim and Muhammad Ibrahim (uncles of Muhammad Naqi). The possession described to be with Muhammad Ayub in his capacity as of administrator of the School. Several documents were annexed with the petition to establish the respective assertions. The proceedings on the complaint were not remained confined to the residential flats; rather the School, its business and the building with the land underneath was the real controversy between the parties. In view of the nature of the case an interim order for attachment of the property with freezing of the accounts was made, in the first round of litigation, by the trial Court, but it was never implemented in its true sense. It is third time the petitioner is before this court with same assertions and for the same relief. In view of the narrated facts not only an order to meet with the situation, but also to settle the dispute once and for all is required.
9. It is to be noted that neither the complainant Muhammad Naqi, nor Ahsan Raza approached this court against any order of the trial Court; rather it was only Muhammad Qasim (the present petitioner), who questioned the orders before this court being aggrieved with the findings of the trial Court. The fact that Muhammad Qasim was not a party to the complaint before the trial Court, rather his status was of an applicant, who was before the court with a request to include him as a party to the proceedings. The request to the effect was declined by the trial Court thrice. The learned counsel for the petitioner was asked to describe his status and the relevant provision of law which allowed a third person to become a party to a proceeding, criminal in nature, that too as of complainant. There was no reply, rather the learned Counsel was of the view that as the property in dispute consisted of a school building, and residential flats, also owned by the School and the management of the School was also matter in issue. Further, the School as a whole jointly owned by the petitioner and Muhammad Ayub, therefore, in their status as of lawful owner necessitated their inclusion in list of the complainants. He further stated that the other complaint in respect of the same premises had already been filed by the petitioner (Muhammad Qasim) and Muhammad Ayub, against several persons including the present respondent No. 1, thus are to be dealt with jointly.
10. Copy of the referred complaint available in the case file described filing of the complaint in continuity with the complaint initially filed by Muhammad Naqi. It was hard to understand that when the petitioner (Muhammad Qasim) had already filed a complaint with, same object, still subjudice, why he was pressing hard to become party in the first complaint filed by Muhammad Naqi instead of pursuing with his own case. Further, no law was referred to support his respective contention. The request was rightly declined by the trial Court.
11. As far dismissal of the complaint is concerned, as noted in the impugned judgment that the charge was framed on 6th June, 2009, and since then till final decision of the matter not a single witness appeared in support of the complaint. Section 265-C Criminal Procedure Code (Cr.P.C.) requires that a complaint filed in writing must state the substance of accusation, names of witnesses and the gist of evidence, which the complainant likely to adduce at the trial. While section 265-F, Cr.P.C. Requires a court to ascertain the names of the persons acquainted with the facts of the case and able to give evidence, and shall summon such persons to give evidence before it. The complaint, copy where of, available in the case file, neither contained the names of witnesses, nor the gist of evidence. Further, there was also no assertion on part of the petitioner that despite providing the necessary details the trial Court failed to summon the persons intended to be produced as witnesses. In view of the narrated facts the trial Court might have recorded findings in exercise of powers available under section 265-K, Cr.P.C. Instead of allowing the complaint to be withdrawn. Further, in each case an order of acquittal of the accused was to be recorded. The trial Court in the impugned judgment discussed the material available before it and dismissed the complaint for want of merit. Though the trial Court not skillfully write the order, but fortunately arrived to a correct decision, only with an error as it required to record an order of acquittal in favour of the accused Ahsan Raza on dismissal of the complaint.
12. In view of the above discussion the order of the trial Court .Is just and proper in the given state of affairs, therefore, it is hereby upheld with the rectification that the complaint is dismissed for want of merit, while the accused Ahsan Raza son of Muhammad Ibrahim is acquitted of IA the charge.
13. Before parting with the judgment it need to mention with concern that the parties i.e. Muhammad Qasim and Ahsan Raza along with number of persons are engaged in litigation, criminal in nature, and pressing hard to get an order of conviction against each other. The basis of the dispute between the parties is in fact a property where a school in the name of Quetta Public High. School and College, Shah Zaman Road, Joint Road, Quetta is in existence and in operation.
The parties along with several other persons not only fighting for the landed property and the superstructure existed thereon, but also for the management of the School only for financial gains.
It is unfortunate that none of them care about the future of the educational institution, established decades ago, nor about the students getting education therein. They all are fighting for their personal gains. And to achieve the purpose the conduct adopted by them not only created an apprehension of breach of peace, rather they have already breached the peace, as several cases, criminal in nature, had already been tiled against each other and still subjudice. The order sheets maintained by the trial Court also noted the conduct of the parties as highly aggressive and hostile against each other. Due to the conduct adopted by the all concerned, including the parties, very unfortunate situation has arisen and future of number of children are at stake, and the educational institution is at the verge of destruction. It is third round that this matter is before this court, and it is noted with pain that the parties are still engaged in criminal litigation, while none of them made any effort to get declare a clear title, by a court of competent jurisdiction, in his favour to place an end to the dispute existed between them for a number of years.
14. The described circumstances necessitated an exercise of inherent powers by this court to secure the ends of justice and to place to an end the unnecessary litigation. It is, therefore, ordered that the property consisting of the land and buildings, residential and of the School i.e. Quetta Public School and College, are hereby attached. The Government of Balochistan is directed to take possession of the School and the annexed buildings. Further, directed not to permit either of the parties or any other person to enter the premises or interfere in running and management of the School. The Government is further directed to constitute a Board, to look after the administrative and financial affairs of the School. For the purpose the Board shall maintain the accounts, protect, preserve and improve the School, and shall take all the necessary steps for its better administration. It will not be out of context to mention that on the basis of the material available in the case file none of the parties satisfied this court that who was in actual possession of the property, matter in issue, thus the property shall remain attached till determination of a clear title through a competent court of law. It is advisable for the Government to secure an educational institution; though private, but it is prime duty of the authority concerned i.e. The Education Department, Government of Balochistan to look into the affairs of an educational institution and to keep it on right path to save the children, who are the real affectees.
With the above noted observations the petition stands disposed of in the above terms.
The office is directed to send a copy of this decision to the Chief Secretary, Government of Balochistan and the Secretary, Education Department, Government of Balochistan for strict compliance with the direction to submit their compliance report to this court within three weeks for perusal in chamber.