TARIQ MAHMOOD BAJWA, J. By means of instant criminal revision under Section 435/439 of Cr.P.C. read with Section 9 of Illegal Dispossession Act, 2005 ('the Act'), petitioner has challenged the order dated 25.09.2024 handed down by learned Addl. Sessions Judge, Mandi Bahauddin whereby petitioner has been directed to hand over the possession of one room in the subject property to the respondent No.2/complainant.
2. Pithily, on 04.06.2024, respondent No.2 filed a private complaint under Section 3 of the Act against the petitioner before the Court of Addl. Sessions Judge, Mandi Bahauddin maintaining that he was the owner of the property/plot No.54 and he constructed house over it. The petitioner, who is real nephew of respondent No.2, dispossessed him from the said house in the month of March, 2022.
3. Learned trial court recorded cursory statement of the respondent No.2 as well as his witnesses on 27.06.2024 and petitioner/accused was summoned on 22.08.2024, thereafter the court summoned report from S.H.O. regarding previous and present possession over the disputed house, in pursuance of the same, detailed report was submitted on 15.09.2024. On 25.09.2024, the learned trial court passed the order/direction to the petitioner/accused to hand over the possession of one room in the subject property to respondent No.2/complainant. Feeling dismayed, petitioner brought the instant criminal revision.
4. Mr. Khalid Pervaiz Warriach, Advocate learned counsel for the petitioner has contended that impugned order is not sustainable either in law or on facts. The police had submitted report in clear words that the possession of the subject property was with Muhammad Afzal, petitioner as well as brother of the complainant. While referring to Section 7 of the Act, further adds that possession cannot be restored to the complainant as an interim relief before trial. The Illegal Dispossession Act, 2005 was enacted on 30.06.2005 and it was published in the Gazette of Pakistan on 07.07.2005.
Police report clearly conveys that petitioner was in possession of the house from almost 35 years, with the strength of that report, says that petitioner was in possession of the house before enactment of the Act. The Illegal Dispossession Act, 2005 is not applicable with retrospective effect.
5. Mr. Aftab Hussain, Advocate learned counsel for the respondent No.2/complainant while opposing the said contentions and supporting the impugned order, contends that petitioner was an illegal occupant whereas the respondent No.2 was owner of the house. The petitioner was directed only to hand over possession of one room as an interim relief.
6. Hearkened, record perused.
7. Statutes are undoubtedly an important source of law, but their effectualness as law has a great deal to do with the way they are regarded by the judges of any country. The brute fact remains that the statutes do not interpret themselves. Their meaning, their import and their application to the concrete situation of life, must await the sanction of the court and, to borrow the felicitous phrase of Gray "it is with the meaning declared by the courts, and no other meaning, that they are imposed upon the community as Law."
8. In the under discussion special law, power of interim relief/to put the owner or occupier, as the case may be, in possession is enshrined in Section 7 of the Act. Before attending the legality of the impugned order, it would be apposite to have a glance upon Section 7(i) of the Act which is as under: "7. 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."
9. Grant of interim relief within meaning of Section 7(1) of the Act was subject to condition "during the trial". The said stage is the condition precedent. The use of word by legislature "during the trial" in Section 7(1) of the Act is of significance importance. The expression "during the trial" is not as common sense assumes.
10. In the latest case law reported as "Niaz Ahmed and another versus Aijaz Ahmed and others"
(PLD 2024 Supreme Court 1152), in a case relating to the Illegal Dispossession Act, 2005, in para 12, Hon'ble Supreme Court expounded the said section, term/expression endorsed the stage as under:- QUOTE
12. Present case requires determination as to what are the conditions for invocation and application of section 7 of IDA, 2005 and whether, in law, the view taken by the learned trial court and High Court is correct. For the sake of convenience, Section 7 is reproduced below:-
7. 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.
The intent behind section 7 ibid is to grant interim relief during the course of the trial.
13. Bare perusal of section 7(1) of the Act reveals three principal considerations/conditions; Firstly, the jurisdiction conferred thereby is exercisable during the trial only. Thus, interim relief can be granted by the court when trial is still in progress even when the guilt of accused has not been established; Secondly, the use of expression "prima facie" indicates that court has to only form a prima facie opinion and must be satisfied that accused is "not in lawful possession" of the property.
This requirement is less onerous and distinct from reaching a conclusive finding or determination that the accused has entered the property without lawful authority with intent to dispossess, grab, or control the immovable property as specified in the third and fourth elements of section 3 of the Act. The use of the expression "not in lawful possession by the Legislature appears to be a deliberate choice reflecting a less stringent criterion to enable interim relief during the trial this is because the offence under section 3 can only be proved/otherwise at the conclusion of the trial, and Finally, if the court finds that section 7 is applicable then it is duty bound to provide interim relief specified therein.
Thus, interim order under section 7 of the Act can be passed when prima facie it is established to the satisfaction of the Court that the accused is in unlawful possession of the immoveable property and complainant is either owner or was in a lawful possession of the immoveable property before dispossession.
14. Now what needs to be determined is whether these conditions stand fulfilled in the present case. Firstly, grant of interim relief is subject to condition "during trial". The expression "trial" has been interpreted by this Court in the case of "Haqnawaz and others v. The State and others"
(2000 SCMR 785), wherein it has been held that: "From a review of the above provisions of the Code, it is quite clear to us that taking of cognizance of a case by a Court is not synonymous with the commencement of the trial in a case. Taking of cognizance of a case by the Court is the first step, which may or may not culminate into the trial of the accused. The trial in criminal case, therefore, does not commence with the taking of the cognizance of the case by the Court".
Thus, use of word by the legislature "during the trial" in section 7(1) of the IDA, 2005 is of significant importance. There is no cavil to the proposition that taking of cognizance is not commencement of the trial. Trial of a case commences with the framing of the charge.
UNQUOTE
11. Now, I would like to attend the facts/stage of this case on the yardstick/checklist of the supra law as well as interpretation of the expression. The certified copies presented by the learned counsel for the petitioner indicate that before delivery of copies to the accused and framing of charge, learned trial court passed the impugned order. Learned counsel for the respondent No.2 also not disputed, before framing of charge, the under discussion order was passed. The initial stage is quite visible even from the impugned order, which is reproduced as under: "Further, it is notable that the complainant, despite of the fact that he is the owner of the subject property, has been illegally dispossessed by the accused from the subject property and the accused without any title of ownership is enjoying the possession of subject property. At this initial stage, the accused is directed to hand over the possession of one (1) room in the subject property to the complainant and further matter should be decided afterwards. If the accused does not comply with the direction contained in this order, then the S.H.O. concerned is directed to affect the possession of complainant over the subject property there off.
Now to come up for report of S.H.O. regarding delivery of possession on 03.10.2024. "
12. The procedural stage, as envisaged under the special law, was altogether disregarded prior to the issuance of the impugned order. It is a well-settled principle in the administration of justice that when the law prescribes a specific manner for performing a particular act, it must be carried out in that prescribed manner alone and not otherwise.
13. Execution or implementation constitutes the process through which a judicial order is enforced, thereby enabling the successful party to derive the intended benefit from such order. While it is not in dispute that the complainant is the uncle of the accused, the familial relationship stands overshadowed by the severity of the disputes, which were of such a grave nature that they could not be resolved within the family or the local community, ultimately necessitating judicial intervention. Significantly, the complainant/respondent had explicitly alleged in the complaint that the accused/petitioner had extended threats of murder.
14. A careful and meticulous perusal of the complaint, however, does not reveal how many rooms exists in the house in question, nor whether any room has an independent or direct access to the street. The police report is also silent on these critical particulars. Likewise, the cursory evidence adduced by respondent No. 2 does not specify either the number of rooms or the existence of any room with a direct approach to the passage.
15. In this context, the direction to hand over possession of "one room" in the subject property appears inconsistent with both the legal framework and the factual assertions made in the private complaint as well as the cursory evidence on record. Furthermore, the impugned order states that, in the event of non-compliance by the petitioner/accused, the concerned Station House Officer
(SHO) shall effect possession in favour of the complainant, however, in the absence of a precise identification of the room in question, such a direction effectively delegates to the law enforcement agency the judicial function of specifying which room is to be handed over--an action which is legally impermissible.
16. Accordingly, the directive to implement the handing over of possession becomes incapable of execution due to lack of specificity and judicial certainty. This portion of the impugned order, being devoid of essential judicial safeguards and precision, is liable to be set aside even on this singular ground.
17. In light of the above discussion, this criminal revision is allowed with the observation that the impugned order dated 25.09.2024 suffers from material illegality and procedural irregularity, rendering it unsustainable in the eye of law and the same is accordingly set aside.