' Through this petition, the petitioners seek following relief:- "It is therefore respectfully prayed that this criminal revision be allowed and the impugned order dated 7.7.2014 be set aside and the petitioner be allowed to put forward the list of witnesses and to adduce/record their statements to reach at a just conclusion so as to meet the ends of justice"
2. The petitioners are the lawful owners in possession of land measuring about 20-kanals of land in Khewat No, 564/637,638 Khatooni Nos. 990 to 997, Khewat No, 1755, Qitas 1918 in the Revenue Estate of Village Tumair Tehsil and District Islamabad since its purchase. The respondents illegally encroached upon almost entire land by dispossessing the petitioners from above stated land. The petitioners reported the matter to the local police, but they did not perform their duty according to law hence petitioners instituted a petition Under Sections 3 & 7 of the Illegal Dispossession Act, 2005. As the report submitted by the local police was not satisfactory according to law therefore police was against directed to submit factual reports. There-after, trial of the case commended.
Presently, the matter is at the stage of arguments without recording of remaining evidence as per law. The petitioners requested the learned trial Court through application for summoning of witnesses as the list of witnesses could not be attached at the earlier stage of the complaint, but said application was dismissed vide impugned order dated 07.07.2014 by the learned Additional Sessions Judge-III, Islamabad-East, hence this petition.
3. It is contended by the learned counsel for the petitioner that the impugned order is against law and facts of the case; that the witnesses required to be summoned are necessary material witnesses for reaching at a just and proper conclusion of the matter and if they are not summoned, the applicants/petitioners shall suffer irreparable loss; that the complainant should be given full opportunity for successfully discharging the onus of providing his case by adducing material witnesses; that the application moved by the petitioners in this regard was dismissed merely on technical basis for not attaching the list of witnesses at the earlier stage of the complaint and the order of dismissal of said application is fatal for the merits of the complaint; that omission to file the list of witnesses at the earlier stage of the complaint is to be treated as an irregularity, whereas technical reason is curable at any stage of the proceedings with the permission of the Court concerned; that even the learned trial Court can itself call or recall the witnesses for just disposal of the case/complaint in accordance with law; that learned trial Court has failed to adopt proper procedure and law while summoning/procuring the attendance and record statements of witnesses for just disposal of the matter; that learned trial Court has dismissed above said application in a harsh, fancy, hasty, fanciful and. Arbitrary manner, which is against the principles of natural justice; that impugned order is based upon surmises and conjectures and the reasons assigned in support thereof are not sustainable under the law and are liable to be set aside; that learned trial Court extended the undue benefit to the accused party and if the impugned order is not set aside and said application is not allowed, the petitioners will suffer irreparable loss; that closing the right of evidence and witnesses and disallowing the application for recording of statements of witnesses tantamount to deprive the petitioners from proving their case and that the learned trial Court failed to follow the law and dictums laid by the superior Courts.
4. On the other hand, learned counsel for Respondent No, 3- has supported the impugned order passed by the learned Additional Sessions Judge-III, Islamabad-East by arguing that it is pre- requisite of Section 265 (c), Cr.P.C. That the complainants/petitioners should file list of witnesses along with complaint which was needed to be provided to the accused. However, the petitioners had not furnished any such list and in order to fill in the lacuna, the petitioners intended to summon witnesses after recording of evidence; that it is a settled law that the parties have to produce the evidence in order to provide its case and this burden cannot be shifted to the Court.
5. Learned State Counsel has adopted the arguments advanced by learned counsel for Respondent No, 3.
6. I have heard the arguments and perused the record, whereas relevant provisions of law and the authorities referred have also been gone through. ;
7. Admittedly, the petitioners did not figure out names of any other PW in the list which was initially required to be submitted in compliance of Section 265(c), Cr.P.C. Non-furnishing list whereof, does not disentitle the complainant to call or recall any other PW during proceedings.
8. The Hon'ble Supreme Court of Pakistan in a reported decision 2012 SCM R 229 has enunciated the principle in clear words that cognizance in complaint moved under Illegal Dispossession Act, 2005 is altogether different to that of complaint and can be equated as complaint under Section 154, Cr.P.C. It was further observed therein that the report under Section 5(1) of Illegal Dispossession Act, 2005 can be equated with report under Section 173, Cr.P.C.
9. From sketch of above proposition, it is made clear that the learned Sessions Judge, while entertaining complaint moved under Illegal Dispossession Act, 2005, has to take cognizance observing technicalities provided under Section 190, Cr.P.C. Though applicability of Criminal Procedure Code has depicted by Illegal Dispossession Act, 2005 is a principle applicable to the proceedings initiated under above Act. When specific provision is provided by law as referred above, in view of Sections 4 & 5 (I) of Illegal Dispossession Act, 2005, it changes the nature of taking cognizance and calling report from the concerned SHO. On submitting report as required by Section 5(1) of Illegal Dispossession Act, 2005, SHO concerned is required to conduct investigation and submit report in this regard which shall be deemed to be a report filed under Section 173, Cr.P.C. Section 529, Cr.P.C. Defines irregularities which do not vitiate the proceedings, whereas Section 529(e), Cr.P.C. Defines taking cognizance of an offence under Section 190(I), clause (a) & clause (b), Cr.P.C. When such an irregularity is committed on taking cognizance, which do not vitiate proceedings. Then it is curable on divulgence of new development from the report submitted by SHO concerned in compliance with 'the order passed by the. Court.
10. Otherwise, any party to the proceedings, during investigation or trial, as envisaged by Section 94, Cr.P.C., can request for summoning the record through witnesses for the purpose of just and fair trial. It is observed that administration of criminal justice requires that every opportunity to the parties be provided.
11. The petitioners, being complainants in this case, seek examination of those PWs whose names could not be submitted earlier.
12. Admittedly, the charge has not been framed so far, which is the stage of commencement of trial. Prior to that, an opportunity could be provided to summon the witnesses, as Section 265(c), Cr.P.C. Requires for production of statements of PWs and requisition of record.
13. Under the circumstances, there is no clog for the petitioners, who are complainant of complaint filed under the Illegal Dispossession Act, 2005 to summon witnesses or the record, which in view of above legal proposition, can be summoned at any time, even after commencement of trial for which, there is no bar. The reason on the basis of which, learned trial Court dismissed application for calling witnesses, has a limited scope, which cannot be pressed into service at this verge.
14. It is observed that application though was not moved by the petitioners under proper enactment, rather it was filed by following general principle on attorney's request therefore, law has to be followed properly by the Court concerned. Without recording evidence of PWs mentioned in the application, the Court concerned even after examining other material placed before it, cannot reach to a proper and just conclusion therefore in order to determine real controversy, it would be just and equitable to allow application moved by the petitioners for summoning of record through witnesses.
15. In view of above, this Criminal Revision is allowed. Consequently, impugned order dated 07.07.2014 is hereby set aside. The application moved by the petitioners for summoning of record through witnesses is allowed. The witnesses mentioned in the application moved by the petitioners be examined at the trial to determine real position.