NOOR ZADA vs MUHAMMAD KHALID and 6 others

ORDER

.' TARIQ SHAMIM, J.--- Through this petition, the petitioner has assailed the orders of the learned Additional Sessions Judge, Lahore dated 3-7-2006 and 12-7-2006 passed on a complaint filed by the petitioner under the Illegal Dispossession Act of 2005.

2. The brief facts of the case are that the petitioner submitted an application to the S.H.O.

Concerned for registration of a Case against respondents Nos.1 to 5 on the premise that on 14-5- 2005 the accused had forcibly gained entry into his plot and had demolished the outer wall. The matter was probed into by the S.H.O. Who opined that the complaint was false. The petitioner thereafter proceeded to file a petition under section 22-A, 22-B, Cr.P.C. Before the learned Additional Sessions Judge/Ex-Officio Justice of Peace which was dismissed on 1-6-2005 by the learned Judge holding that the petitioner was not able to establish his possession, in respect of the disputed plot and that the entire story narrated by the petitioner was false. Being dissatisfied, the petitioner instituted a criminal complaint under the Illegal Dispossession Act, 2005, which was dismissed by the learned trial Court while concluding that in the light of the investigation as well as the documents available on the record no case of illegal dispossession was made out. Hence this petition.

3. The learned counsel for the petitioner contended that the learned Court had summoned the respondents at the preliminary stage which was not in consonance with the spirit of section 200, Cr.P.C.. As the said provision of law did not require the Court to associate the accused with the inquiry proceedings and that the impugned order dated 12-7-2006 not being a speaking order was passed in violation of section 202, Cr.P.C.' Thus, vitiating the entire proceedings.

4. The learned counsel appearing on behalf of respondents Nos.1 to 5 while supporting the impugned order contended that the learned Additional Sessions Judge had passed the order based on the evidence produced by the petitioner which lacked credibility.

5. I have heard the learned counsel and perused the record with their able assistance.

6. The arguments advanced by the learned counsel for the petitioner are devoid of any force. I disagree with the proposition that in all cases where there has been a departure from the provisions of section 202, Cr.P.C. The end result is bad proceedings liable to be set aside. In the first instance,' section 537, Cr.P.C. Which is applicable to the proceedings of a criminal Court clearly lays down that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity unless such error, omission or irregularity has occasioned miscarriage of justice. In the instant case, I have failed to notice any miscarriage of justice merely on account of non-recording of reasons or that any prejudice has been caused to the petitioner. The evidence led by the petitioner before the learned Additional Sessions Judge was not sufficient to satisfy the learned Judge as to the correctness of his case.

Even otherwise, the provisions of section 202, Cr.P.C. Are enabling provisions and not obligatory.

Further, the provisions of section 203, Cr.P.C. Are quite explicit which provide that the Court may dismiss the complaint if, in the judgment of the Court, there are no sufficient grounds for proceeding by "briefly recording" the reasons for doing so. Thus, in view of the provisions of section 203, Cr.P.C. No illegality has been committed by the learned Court.

7. In so far as the other contention regarding summoning of the accused at preliminary stage is concerned, suffice it to say that if the Court holding such an inquiry issues summons/notice to the accused persons before issuing process, it would not vitiate the proceedings as it would also be a mere irregularity curable under section 537, Cr.P.C. The learned Court after recording the statements of the witnesses and perusing the documents, including the investigating report, concluded that no illegal dispossession as alleged by the petitioner in the complaint within the contemplation of section 3 of the Illegal Dispossession Act, 2005, had taken place. Thus, the material produced before the learned Court by the petitioner fell short of establishing a prima facie case.

8. It has further been noticed that the dispute essentially is a private dispute between two parties over possession of the plot in question which is sub judice before a Civil Court since before filing of the complaint, by the petitioner. It is evident from the facts and circumstances of the case that the complaint was filed against respondents Nos.1 to 5 by the petitioner to circumvent the normal civil proceedings and to create pressure on the respondents by resort to criminal process.

9. Moreover, the scope of the Illegal Dispossession Act is restricted to cases of illegal dispossession from immovable property at the hands of a class or group of persons who have the antecedents of being property grabbers/Qabza Group and the Act has no applicability to ordinary cases involving disputes over possession of immovable property. A perusal of the material available on the record does not reveal that the respondents have the credentials .Or antecedents of a Qabza Group or land Mafia. Further, the matter is sub judice before a Civil Court which is competent to decide the dispute between the parties.

10.. In view of the above, I am of the considered view that the impugned order does not call for interference. The writ petition being devoid of any merit stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.