' A private complaint under Section 3(2) of the Illegal Dispossession Act, 2005, was filed on 12.09.2006, by Mirza Masood Baig, Respondent No, 3 herein, in the Court of learned Sessions Judge, Jhelum against the present petitioners, impleading therein certain other respondents, being proforma respondents, which was entrusted to a learned Additional Sessions Judge. It was maintained in the said private complaint that the complainant was owner in possession of the property, bearing Khawat No, 966, Khatooni No, 2136, Khasra No, 2756/1335, as per entries in the Register Haqdran Zameen for the year 1996-97, measuring 4 kanals 13 marlas; that the present petitioner, namely Muhammad Sharif having no concern whatsoever with the said land, on 15.07.2006, illegally and forcibly took possession of a portion of the said land measuring 2 kana/s and that he belonged to a Qabza group and through his gang, used to grab and forcibly occupy properties of others and then to buy the same on nominal rates. The complainant, therefore, prayed for initiating legal action against the petitioner and restoration of possession. It appears that the learned trial Court summoned the petitioner and before commencement of trial, vide order dated 08.01.2007, directed the SHO concerned to restore the possession of the land in dispute to the complainant through his tenant, namely Rab Nawaz and to submit report till 15.01.2007.
2. It is in this background that the petitioner, through the instant petition, sought annulment of the said order and also dismissal of the private complaint, mainly on the ground that he had purchased one kanal 19 marlas of the land in dispute from Mirza Zamurad Baig, Respondent No, 3 in the private complaint and Respondent No, 7 herein, who were co-sharers to the extent of 3 kanals alongwith the complainant of the private complaint and other respondents; that the above named co-sharers had sold the land in dispute to the petitioner, hence, he could not be termed as a land grabber or illegal occupant. Further maintained that the order for restoration of the possession could not be passed before commencement of trial and admittedly trial had not commenced, when the order for restoration of possession was passed, as such the same is liable to be set aside.
3. It appears that only contesting respondent in this case is Mirza Masood Baig, Respondent No, 3, who is duly represented by Ch. Asif Ali, Advocate, his learned counsel, but nobody has turned up on his behalf. Similarly, order dated 11.03.213, suggests that, other respondents were also duly represented, but nobody has turned up on their behalf as well. However, they are proforma respondents, therefore, they are proceeded against ex-parte.
4. I have heard arguments of the learned counsel for the petitioner, learned law officer and have myself perused the record.
5. As regards maintainability of private complaint under the Illegal Dispossession Act, 2005, it appears that the complainant in the private complaint has categorically alleged in Para No, 5 that the petitioner belongs to a gang of land grabbers as he is involved in illegal occupation of lands belonging to others. The fact as to whether the petitioner belongs to such a gang of land grabbers or not, is a question of fact, which is to be decided by the learned trial Court in due course of time, as the record suggests that up-till-now, except distribution of copies, no proceedings have been carried out in the private complaint.
6. As regards contentions of the learned counsel for the petitioner that the learned trial Court has committed illegality by passing the impugned order for restoration of possession of land before commencement of trial, the same appears to have some force in it. In this regard, it appears from the copy of the order sheet of the learned trial Court, available on record that private complaint was filed on 12.09.2006 and till passing of the impugned order, the trial had not commenced, instead on 21.01.2007, the case was fixed for 02.02.2007 for distribution of copies to the accused of private complaint. An order for restoration of possession, as the one impugned herein, could be passed by the learned trial Court under Section 7(1) of the Illegal Dispossession Act, 2005, which reads 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.
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' It appears that the use of word "during trial" is of immense importance, as the same has not been used without any purpose and the trial commences with the framing of charge against an accused. Reliance in this regard may be placed on the case titled "Abdul Weed vs. Noor Muhammad etc." (NRL 2006 Criminal 556), wherein it has been held by this Court as under:-- ' It is now well-settled that trial in a criminal case commences on framing of the charge, which has admittedly not yet been framed."
Since in this case, charge had not been framed. The trial had not commenced, therefore, order for restoration of possession of land could also be not passed by the learned trial Court. So has been held by this Court in the above said judgment in the following words:-- "The contention of the learned counsel that after having formed his prima facie opinion, the learned Additional Sessions Judge ought to have passed an order under Section 7(1) of the Illegal Dispossession. It is now well-settled that trial in a criminal case commences on framing of the charge, which has admittedly not yet been framed."
7. In the light of above discussion and case law referred to above, the impugned order, passed by the learned trial Court appears to have been passed with material illegality and irregularity and the same cannot sustain, which is hereby set aside. Resultantly, the learned trial Court shall proceed with the private complaint and during the trial, if it is satisfied that the petitioner is found prima- facie to, be in lawful possession, it may direct to him to put the complainant in possession in accordance with the provisions of Section 7 of The Illegal Dispossession Act, 2005, Copy of this order be forwarded to the learned trial Court for information and compliance.