NOOR-UL-HAQ N. QURESHI, J.---Through this petition, the petitioner seeks following relief:- "In the aforesaid circumstances, it is humbly prayed that Revision Petition may graciously be accepted and impugned order dated 21-3-2015 may kindly be set aside and the learned trial court may kindly be directed not to record the evidence of witnesses namely Tamrez and Abdul Haleem and other witnesses who have been mentioned in list of witnesses dated 23-10-2014 as the same is illegal, unjust and will prejudice the rights of accused"
2. Respondent No.1 filed complaint against the petitioner stating therein that he purchased a piece of land measuring 10-marlas situated in Khewat No,159, Khatooni No,255, Khasra No,558 in shape of plot in revenue estate of Pind Parian, Tehsil and District Islamabad through registered Sale Deed No,4373 dated 22-1-1995 and respondent No,1/complainant took over the possession of the same.
On 26-9-2010, when he was enjoying peaceful possession over the land, the petitioner illegally and forcibly got the possession of the land and dispossessed him from the same. The complaint was admitted. After recording of cursory statements and submission of inquiry report of police, the petitioner was summoned and after submission of bail bond, charge was framed wherein the accused pleaded not guilty. Thereafter, the matter was fixed for evidence. On 18-3-2015, the complainant/respondent No,1 produced two witnesses namely Tamrez and Abdul Haleem for recording of evidence. The petitioner raised objection on recording of statements of above PWs on the ground that their cursory statements were not recorded under section 200 Cr.P.C., as copies of their statements were not provided to him before framing of charge in the present case, but learned trial court overruled these objections vide impugned order dated 21-3-2015, hence present Criminal Revision.
3. It is argued by the learned counsel for the petitioner that impugned order dated 21-3-2015 is against the law, as learned trial court did not consider the fact that neither cursory statements of the witnesses were recorded nor copy of any statement of witnesses namely Temrez and Abdul Haleem was delivered to the petitioner before framing of charge as envisaged in section 265-C of Cr.P.C; learned trial court passed the impugned order in an arbitrary manner by ignoring the fact that in a complaint case, the complainant has to file list of witnesses along with their gist of evidence. Cursory statements with other material of all the witnesses within seven days before framing of charge are required to be delivered. Failure to comply with the mandatory provision of section 265-C, Cr.P.C., in the present case, same were delivered with a delay of almost one year of issuance of process; learned trial court did not exercise the jurisdiction vested upon it, as the list of witnesses was filed on 23-10-2014 by complainant after framing of charge. Neither same can be relied upon nor can any witness mentioned in the said list be allowed to record evidence because in criminal cases, it is settled principle that accused should not be surprised and all the material and statements of witnesses and list of witnesses has to be filed before framing of charge. Copy of the same has to be provided to the accused in order to provide sufficient time to study the allegation and to prepare his plea in defense; the learned trial court passed in the impugned order in an arbitrary manner. From the record, it appears that neither statements under section 161, Cr.P.C. Of proposed witnesses namely Tamrez and Abdul. Haleem was recorded nor the same is available Or record and delivered to the accused before framing of charge therefore evidence of such witnesses cannot be recorded at this stage of proceedings; learned trial court failed to apply its judicial mind that no list of witnesses can be allowed to be filed after framing of charge and list of witnesses filed on 23-10-2014 has no value in the eye of law; learned trial court has failed to apply its judicial mind, as in criminal cases, there are two types; one is challan case and the other is complaint case, but the learned trial court neither adopted proper procedure of complaint case nor procedure of challan case; learned trial court did not apply its judicial mind while passing the impugned order, as it is clearly mentioned in Section 9 of Illegal Dispossession Act, 2005 that where the Act is silent regarding procedure, the procedure laid down in Criminal Procedure Code would be followed; it is pertinent to mention here that section 5 of Illegal Dispossession Act only provides the procedure regarding cognizance thereafter the Act is silent regarding the procedure of trial therefore provisions of Cr.P.C. Are applicable; learned trial court passed the impugned order dated 21-3-2015 without considering the fact that petitioner has never delayed the case, as is evident from the record that complainant could not bring his evidence and the matter was delayed by him seeking adjournments on one and other pretext. Lastly, learned counsel has made request for setting aside impugned order dated 21-3-2015 and direction to the learned trial court not to record the evidence of witnesses namely Tamrez and Abdul Haleem and others who have been mentioned in the list of witnesses dated 23-10-2014.
4. On the other hand, learned counsel for respondent No, 1 as well as learned Standing Counsel supported the impugned order in view of observations made therein.
5. Arguments of both the sides have been heard and relevant record as well as provisions of law perused.
6. From the record, it transpires that complaint was filed by respondent No,1 on 25-4-2011, charge was framed on 22-1-2013, the documents said to have been provided in compliance with section 265-C, Cr.P.C. Surprisingly, the statements were recorded on 8-4-2011 and 9-4-2011.
7. The record also depicts that after entertaining the complaint moved under sections 3 and 4 of Illegal Dispossession Act, 2005, the learned trial court vide order dated 3-6-2011 required the SHO to furnish report.
8. In this regard, it is necessary to mention here that keeping in view the requirements of scheme envisaged by Illegal Dispossession Act, 2005; it could be termed as a report after conducting investigation.
9. Surprisingly, the investigation report though contained the date after passing the order, but still it is a fact under mystery, as to how the statements were recorded during investigation containing the date much prior to even registration of FIR. An inference could be drawn in this regard that earlier statements might have been recorded by SHO or any other police officer of the same Police Station and on the basis whereof, report was prepared and set of statements along with other documents was also provided to the learned trial court.
10. Learned trial court took cognizance on the basis of such report as required by section 5 of Illegal Dispossession Act, 2005.
11. The mode of taking cognizance of offence is altogether different to that of mode provided by sections 190 and 193, Cr.P.C., as the case may be. Though application of Criminal Procedure Code is barred except those procedural provisions provided by the Illegal Dispossession Act, 2005 itself. The only application of Criminal Procedure Code, without its extent, is provided by the Act therefore procedure of trial under Chapter XIV Cr.P.C. Is mostly followed in such type of cases. However, if required, then Chapter XX along with section 265-C, Cr.P.C. Would attract which mandates supply of statements and documents to the accused free of cost not less than seven days before commencement of trial.
12. The commencement of trial means the day when charge is framed under Chapter XIX Cr.P.C.##TE#
13. Learned counsel for the petitioner mainly emphasized that since very mandate of law was not followed, as copies of statements to the accused were not supplied while following procedural law, therefore whole proceedings are required to be vitiated/quashed.
14. It is observed that entire proceedings of trial cannot be vitiated merely for the reason that charge was not framed properly either bypassing the procedural law or for any other reason. In this regard, law is very much clear in view of section 529(e) Cr.P.C., which clarifies clouds. The relevant part of said section 529(e) Cr.P.C. Is reproduced here under:--##TE# "529. Irregularities which do not vitiate proceedings.--If any Magistrate not empowered by law to do any of the following things, namely:-- ............. ............ .............
(e) to take cognizance of an offence under section 190, subsection ( I ), clause (a) or clause (b); ............... .............. .............. erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered"
From above provision, it is clear that since very beginning of taking cognizance of offence and framing of the charge, the proceedings for any such reason, cannot be vitiated.
15. However, after framing of charge, the procedure adopted without observing codal formalities by the learned trial court, can be quashed.
16. As discussed above, the statements if not recorded in preliminary inquiry or during investigation as a cursory statement, which could be done even provided by section 201, Cr.P.C.
17. For the foregoing reasons, this petition is partly allowed. The proceedings of learned trial court before or after framing of charge are vitiated. However, learned trial court may commence proceedings from such stage by either recording cursory statements of PWs named above or may direct the SHO concerned to conduct investigation and submit such report before the court.