IFTIKHAR AHMAD vs ZULFIQAR ALI and 3 others

' M. BILAL KHAN, J.---Iftikhar Ahmad son of Abdul Ghani Butt, the petitioner, by filing this constitutional petition, has challenged the order dated 20-2-2006 passed by the learned Session Judge, Sialkot, whereby his complaint under the Illegal Dispossession Act, 2005 filed against respondents Nos.1 to 3, namely, Zulfiqar Ali son of Abdul Ghani Butt, Khurram Shehzad and Umar Shehzad sons of Inam Ullah, had been dismissed.

2. Precisely the facts giving rise to this petition were that the petitioner had filed a complaint under the Illegal Dispossession. Act, 2005 against respondents Nos.1 to 3 before the learned Session Judge, Sialkot, wherein it had been alleged that he was running his business as a Jeweller in two shops situate in Ittefaq Market, Lorry Adda Sambrial; that the said shops had been purchased by him by means of registered sale deed dated 27-6-1993 from Zulfiqar Ali (respondent No,1), who happens to be his real brother; that on 10-10-2005, about 4-00 p.m., respondents Nos.1 to 3 occupied the shops of the petitioner illegally without any justification rendering themselves liable under section 3 of the Illegal Dispossession Act, 2005. It was prayed that the possession of the shops in the question may be restored to him.

' Respondents Nos.1 to 3 contested the complaint and by means of the impugned order dated 20- 2-2006 the learned Session Judge, Sialkot came to the following conclusion, which is contained in paragraph No,2 thereof:- "After hearing arguments and attending to available record it is , found that bone of contention between Iftikhar Ahmad complainant and Zulfiqar respondents brothers inter se is a commercial shop. Illegal Dispossession Act, 2005 was introduced to protect the lawful owners and occupiers of immovable property from their illegal and forcible dispossession there-from by the property grabbers, Iftikhar Ahmad complainant claiming to have acquired the proprietary and possessory right of the disputed property from his real brother Zulfiqar Ahmad respondent No,1 through registered sale deed executed in the year 1993 interference by this Court in exercise of discretionary powers under Illegal Dispossession Act, 2005 is not warranted, hence, complaint is dismissed in limine."

3. This petition came up for hearing before this Court for the first time on 30-3-2006 on which date pre-admission notice had been issued to respondents Nos.1 to 3, who appeared in response thereto. During the course of hearing of this petition on 20-3-2007 the following order was passed by this Court:- "After hearing the learned counsel for the parties, and with their consensus I am referring the complaint under the .Illegal Dispossession Act, 2005, which had been dismissed in limine, to District Police Officer, Sialkot. He shall get a detailed probe conducted in the matter through an officer of his own choice not below the rank of Deputy Superintendent of Police. A report in this behalf shall be submitted to this Court within three weeks. DPO Sialkot and the Inquiry Officer shall not be influenced by the impugned order dated 20-2-2006 whereby the said complaint had been dismissed in limine. The Inquiry Officer may,. If so required, seek help from Excise and Taxation Revenue authorities or any other relevant department in this regard."

' Pursuant to the said order, District Police Officer, Sialkot submitted a detailed report stating therein that Zulfiqar Ali (respondent No,1) had bold the shop in question to Iftikhar Ahmad (petitioner) and had also handed over the possession thereof to him; later on respondent No,1 had dispossessed the petitioner from the said premises and had forcibly taken over the possession of the same. He also noted in the report that after hearing both the parties at length and examining their documents, A.S.P. Saddar had come to the conclusion that respondent No,1 had illegally dispossessed the petitioner from the shop.

4. I have heard the learned counsel for the parties at considerable length and have also gone through the record. A plain look at the operative part of the impugned order, which has been reproduced hereinabove would show that the learned Sessions Judge did not apply his mind to the facts and circumstances of the case and was swayed into dismissing the complaint under the Illegal Dispossession Act, 2005 merely for the reason that respondent No,1 happened to be a real brother of the petitioner and that the shop in question had been alienated in favour of the petitioner by means of a registered sale-deed. The impression which one gathers from a mere reading of the impugned order is that if a brother illegally dispossesses his brother, the Illegal Dispossession Act, 2005 would not be attracted and further that the said Act would also not come into play if the property had been procured by any of the parties by means of registered sale- deed. I am afraid I cannot subscribe to the aforesaid view expressed by the learned Sessions Judge. In this connection, it would be advantageous to refer to the case of Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 wherein the Honourable Supreme Court of Pakistan while dilating on the scope of the Illegal Dispossession Act, 2005 had inter alia observed that the said Act covered all cases of illegal occupants without any distinction except those which were already pending before any other forum.

5. In view of what has been stated above, I accept this petition and set aside the impugned order dated 20-2-2006 passed by the learned Sessions Judge, Sialkot. The complaint under the Illegal Dispossession Act, 2005 filed by the petitioner shall be deemed to be pending before the said learned Judge and shall be decided strictly in accordance with law. There will be no order as to costs.