ABDUL MAJEED vs NOOR MUHAMMAD and 2 others

ORDER

' M. BILAL KHAN, J.---The petitioner by filing this constitutional petition has impugned the order dated 21-4-2006 passed by the learned Additional Sessions Judge, Bhakkar (respondent No,3) on a complaint made under section 5 of the Illegal Dispossession Act, 2005 by the petitioner against Noor Muhammad and Dost Muhammad, respondents Nos.1 and 2, respectively, whereby he while admitting the complaint for regular hearing has directed the respondents to submit their bail bonds for attendance.

2. Precisely the facts giving rise to instant petition, according to the contents thereof, were that the petitioner was owner in possession of the land measuring 16 Kanals situate in Khasra No,148/1,10, Khata No,73, all along after the private partition; even in the application moved by him before the Revenue Officer seeking partition of Khata Nos.73 and 74, it was specifically alleged that he was in physical possession of the aforesaid land since long; on 4-11-2005, respondents Nos.1 and 2 along with their henchmen while carrying lethal weapons with a view to sabotage the said proceedings, had forcibly occupied the said land, which had been developed by the petitioner with huge expense and labour; this led the petitioner to file the aforesaid complaint before the learned Court of Session, whereupon the learned Additional Sessions Judge requisitioned report from the concerned police, which was submitted twice, once by Ghulam Shabbir, S.-I. Of Police Station Sarai Mohajir on 10-2-2006, and the other by the S.H.O. Of the said Police Station on 21-4-2006, wherein it had been reported that the respondents had forcibly occupied the land in dispute, which was in possession of the petitioner; after going through the reports, the learned Additional Sessions Judge, vide order dated 21-4-2006, had proceeded to admit the complaint for regular hearing on the ground that prima facie illegal dispossession of the petitioner by the respondents was found out and had directed respondents to submit bail bonds for their attendance in the Court. It is the said order, which is being impugned through this petition.

3. After hearing the learned counsel for the petitioner, it has been observed that the order impugned is only an interim order and not a final order, which could be brought under challenge in the constitutional jurisdiction of this Court. The respondents have been summoned only after the learned Additional Sessions Judge found a prima-facie case against them. They have been summoned to answer the accusations against them. 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 Act, 2005 putting the petitioner in possession of the disputed land does not carry any weight inasmuch an order under section 7(1)

(ibid) is to be passed only if during the trial the Court is satisfied that the respondent is prima facie found to be in unlawful possession. It is now well-settled that trial in a criminal case commences on framing of the charge, which has admittedly not yet been framed. Even otherwise a conjunctive reading of section 7(1) and 8 of the Illegal Dispossession Act, 2005 would show that passage of order under section 7(1) is only discretionary with the Court. Had it not been so, there was no occasion for the legislature to have incorporated a provision for putting the petitioner in possession under section 8 of the said Act on conclusion of trial. Therefore, in my opinion, the word "shall" used in section 7(1) will be read as "may" inasmuch as it is only a directory provision. The learned counsel for the petitioner has not been able to point out any jurisdictional error committed by the learned Additional Sessions Judge by not passing any order under section 7(1) (ibid). There is no merit in this petition, which is accordingly dismissed in limine.