SHAHNAWAZ TARIQ, J.---Through the captioned revision application, applicant Gul Muhammad son of Mir Akbar has impugned order dated 28.06.2014, passed by the learned III Additional Sessions Judge, Malir Karachi, in Criminal Complaint No.15/2011, whereby application under section 7(1) of Illegal Dispossession Act, 2005, (herein after referred as the Act) filed by respondent No.2 was allowed to deliver the possession of the subject property.
2. The relevant facts spelt out from the instant revision application are that the respondent No.2 filed complaint under sections 3 and 4 of the Act, against the applicant narrating that house Nos.375 and 376, Sector F-1, measuring 80 Sq. Yds, Karachi Development Authority, Scheme No.4, Landhi Industrial Area, Karachi, was allotted in the name of Syed Muhammad Hassan vide allotment order dated 14.12.1977. The said allottee executed registered general power of attorney in favour of Syed Amir Ali Naqvi in respect of said property vide registration No.5 on 01.01.1984.
Thereafter said Syed Amir Ali Naqvi also executed registered sub general power of attorney in favour of Shahzada vide registration No.87 on 23.01.1991. Subsequently, said sub-attorney Shahzada also executed a registered special power of attorney in favour of respondent No.2 on 10.01.2011.
3. It is further averred that the respondent No.2 visited the said property and found that Khayam and Sultan were in possession of said property and on inquiry they informed that said property was handover to them by the applicant. The respondent No.2 asked those persons to vacate the said property and handover its possession to him but they refused to do so and instead threatened him.
The respondent No.2 also approached the applicant and inquired about the status of the said property but his claim was declined.
4. Learned counsel for the applicant contended that impugned order is illegal and improper as such same is liable to be set aside. He submitted that learned trial Court has failed to appreciate that the possession of the applicant was not illegal and without recording the evidence of the parties to determine the facts and circumstances which is compulsory for passing the impugned interim order, was not complied with. He further contended that the parties are inter-related and applicant is not a land grabber. He also submitted that respondent No.2 has failed to produce any documentary evidence pertaining to his ownership of the said property, while all the original agreements and original special power of attorney are in custody of the applicant. He also contended that respondent No.2 has not disclosed the date of his dispossession from the property which is the basic requirement for filing the complaint under the provisions of the Act. He further contended that SHO Police Station Qaidabad conducted inquiry as directed by the trial Court but said mandate was violated by him while giving his findings. The learned trial Court has failed to appreciate this aspect of the inquiry and without framing the charge has passed the impugned order which is the utter violation of law. He relied relied upon PLD 2009 SC 404, PLD 2011 Lahore 340 and 2013 PCr.LJ 957.
5. While controverting the submissions made by the applicant, learned counsel for respondent No.2 vehemently contended that learned trial Court has passed a proper order after considering the report submitted by the concerned SHO. He contended that the respondent No.2 is owner of the property on the basis of special power of attorney. He further contended that the main complaint was filed on 23.04.2011, by respondent No.2, while an interim order was passed on 28.06.2014, as such the plea of passing interim order at premature stage has no legal substance. He further contended that applicant filed application under section 265-K, Cr.P.C. Before the learned trial Court which was dismissed vide order dated 28.06.2014. He also submitted that the applicant has failed to proceed with the main complaint which is pending since three years. He further contended that the instant revision application is liable to be dismissed. He relied on 2010 MLD 523 and 2010 PCr.LJ 422.
6. Perusal of the available record and consideration of the arguments advanced by the learned counsel for the parties supported with case law emanated that the applicant and respondent No.2 are close-relatives. The respondent No.2 has been claiming his ownership over the subject property on the strength of sub power of attorney executed by the attorney of the original allottee, but ownership of the said property still has not been transferred in his name. On other hand the applicant is in possession of the subject property which is a double story building and was let out to the tenants by him for many years and such fact is also reflected from the police report.
However, as per police report the applicant had failed to produce title documents before the police and the learned trial Court on mere said report has passed the impugned order.
7. It would be appropriate to mention that section 5(1) of the Act deals with the procedure of investigation regarding the allegations made in the subject complaint and the trial Court has been conferred with special powers to direct the officer in charge of the police station to conduct proper investigation and submit a detailed and comprehensive report to the Court. Section 5(2) of the Act confers powers upon the trial Court to examine the report of police minutely and judiciously to take cognizance of the alleged offence. Even otherwise, the submission of the report by concerned police is an initial phase of investigation whereupon the trial Court will commence the regular trial and the entire case could not be decided in view of the findings of police.
8. While passing the impugned interim order the learned trial Court has failed to appreciate the basic requirement envisaged in section 7(1) of the Act, as the respondent No.2 has not disclosed the specific date and time of his alleged dispossession by the applicant from the subject property.
The respondent No.2 never even remained in the possession of disputed property as per the averments of the main complaint, after execution of the special power of attorney and when he visited the subject property it was already occupied. Likewise, learned trial Court has also ignored another important aspect of the controversy that the respondent No.2 has failed to produce the title documents of the subject property in his name and has tried to build the premise of his case on the mere strength of special power of attorney. For the appropriate conclusion section 7(1) of the Act is reproduced as under:- "7. Eviction and mode of recovery as an interim relief.---(1) If during the trial the Court is satisfied that a person is found prima facie to be 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."
9. The term "Prima facie" means the case produced seems to be believable and trustworthy, supported with direct proof and plausible evidence until disproved, invalidated or otherwise. As such from the face of the facts if it appears that there are sufficient and reasonable grounds to believe the case, only then it can be termed as "Prima facie".
10. As per section 9 of the Act, the provisions of the Code of Criminal Procedure, 1898, shall apply to all proceedings under this Act. Prior to discuss the term trial it would be beneficial to refer the definitions of Inquiry and investigation. The term "Inquiry" is defined in section 4(k), Cr.P.C. Which is reproduced as under:- "Inquiry includes every inquiry other than a trial conducted under Code by a Magistrate or Court."
The term "Investigation" is defined in section 4(1), Cr.P.C. Which is reproduced as under:- "Investigation includes all the proceedings under this Code for the collection of evidence conductive by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf."
The inquiry is the first step towards the commencement of the process of the judicial or quasi- judicial proceedings. The inquiry is conducted to collect the primary evidence in respect of an offence or allegations by the police office or any other officer/person duly authorized by the competent authority and on its completion a concluding report is to be submitted with its findings.
While the trial is conducted by the Court or Tribunal after submission of inquiry report. The trial commences only after performance of certain steps which are essential to proceed the case. After a charge is framed against the accused; the public prosecutor shall open the proceedings of the case and produce oral evidence as well as documents in support of the allegations while the accused is brought before the Court and after final hearing, the trial is concluded either in his conviction or acquittal.
11. It would also be appropriate to refer the Preamble of the Act, which reads as under:- "Where it is expedite to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession by the property grabbers."
It is emanated from the preamble that the Act had been promulgated to protect and provide legal shield to the lawful owners and occupiers of the immoveable property from their illegal and forcible dispossession by the land grabbers and further to discourage the unauthorized and illegal occupants. The wisdom behind the scheme of the Act is to maintain and ensure the process of law.
The provisions of the Act shall be invoked strictly in the cases where the illegal dispossession has been claimed by the aggrieved person having legal title and valid possession over the subject immoveable property. The spirit of the Act is to curb the professionals and land mafia with iron hands.
12. Admittedly, in the present case, the charge against the applicant has yet not been framed which is a mandatory condition to pass any interim order under section 7(1) of the Act and in absence of framing the charge, the trial Court cannot invoke its authority envisaged under the provisions of section 7(1) of the Act, as the investigation report submitted by the police in view of section 5(1) of the Act, is a prerequisite condition of the proceedings which could not be treated as a trial.
13. Indeed the learned trial Court has neither considered the question of title of the respondent No.2 over the property in dispute nor afforded an opportunity to the applicant to clarify the allegations leveled by the respondent No.2 by producing oral as well as documentary evidence in his defence, as such the impugned order is not in consonance H with the provisions of section 7(1) of the Act.
14. It is significant to mention that the subject plot was allotted to its original allottee namely Syed Muhammad Hassan vide allotment order dated 17.05.1976 vide letter. No.DLS/WWF-240/76, regarding two plots Nos.375 and 376 each measuring 40 Square Yard. The clause No.2 of allotment letter is reproduced as under:- "2. The possession of the plot will be given to you together with a copy of the site plan of the plot on receipt of the 1st installment of the development charges. The cost of the plan is Rs.1/- only".
15. It is essential to mention that at the time of issuance of the allotment order the possession was not delivered to him by the Karachi Development Authority. The original allottee has failed to produce the receipts of the payment of installments in continuation of allotment, letter which was pre-condition to deliver the possession of said plots to him which apparently had not been complied with.
16. Amazingly, the respondent No.2 in para No.2 of complaint No.15 of 2011, has stated that allotment order was issued on 14.12.1977, which itself is contrary to the above referred allotment letter. The original allottee executed irrevocable general power of attorney on 01.01.1984, in favour of Syed Amir Ali Naqvi and para No.2 of said power of attorney is reproduced as under:- "2. To execute, sign, submit or withdraw all sorts of applications, petitions, appeals, etc. To obtain possession order, site plan or any other documents on my behalf to give statements, to enter into any agreements or to swear affidavits, for the same".
17. Subsequently, said Syed Amir Ali Naqvi also executed sub general power of attorney in favour of one Shehzada regarding the subject property and para No.2 of the sub power of attorney is reproduced as under:- "2. To execute, sign, submit or withdraw all sorts of applications, petitions, appeals, etc. To obtain possession order, site plan or any other documents on my behaV. To give statements, to enter into any agreement or to swear affidavits, for the same".
18. From the above referred, pleadings and documents it has been established that Karachi Development Authority has not delivered the I possession of the subject plots to any one i.e. The original allottee, the attorney, the sub attorney and special attorney. Furthermore, the subject Act was promulgated in the year 2005, while the allotment of plots was issued in the year 1976 and at present there is a two stories building where tenants of the applicant are residing, therefore, the question of the alleged dispossession without delivery of possession and any specific date of the alleged claim of dispossession requires serious consideration.
19. Moreover, applicant is also in possession of certain documents pertaining to the said property, therefore, for appropriate conclusion of the controversy, recording of evidence of both the parties is essential to examine the scope of applicability of the Act that whether the issue to be determined by the trial Court falls within the ambit of the Act or otherwise. Resultantly, the impugned order passed by the trial Court before framing the charge against the applicant and recording the evidence of the pasties is purely at the premature stage which is not sustainable under the law.
20. For the sequel of the above discussion, the impugned order dated 28.06.2014, passed by learned III Additional Sessions Judge, Malir Karachi, being contrary to the facts as well as law is hereby recalled. Consequently, instant criminal revision application stands allowed and the learned trial Court is directed to decide the subject complaint on merits after framing the charge and recording the evidence of the parties.
21. The observations made supra are tentative in nature and the learned trial Court shall decide the complaint purely on merits.