MUHAMMAD FAZAL and others vs SAEEDULLAH KHAN and others

' ASIF SAEED KHAN KHOSA, J.---A complaint filed by respondent No, 1 before the learned Sessions Judge, Islamabad against the petitioners under the Illegal Dispossession Act, 2005 was dismissed by the learned Sessions Judge, Islamabad on the ground that the alleged dispossession had taken place in the year 2002 and the provisions of the Illegal Dispossession Act, 2005 had no retrospective effect. The said order passed by the learned Sessions Judge, Islamabad was set aside by a learned Judge-in-Chamber of the Islamabad High Court, Islamabad by allowing a Writ Petition filed by respondent No, 1 and the matter was remanded to the learned Sessions Judge, Islamabad for holding further proceedings in connection with the respondents' complaint. Later on an Intra-Court Appeal filed by the petitioners before the Lahore High Court, Rawalpindi Bench, Rawalpindi in that regard was dismissed by a learned Division Bench on account of its being barred by time. Hence, the present petition before this Court.

2. After hearing the learned counsel for the parties and going through the relevant record of the case appended with this petition we have straightaway observed that for allowing the Writ Petition filed by respondent No, 1 and for remanding his complaint under the Illegal Dispossession Act, 2005 to the learned Sessions Judge, Islamabad for holding further proceedings in connection with the same the learned Judge-in-Chamber of the Islamabad High Court, Islamabad had squarely relied upon the judgment rendered by this Court in the case of Rahim Tahir v. Ahmed Jan and 2 others (PLD 2007 SC 423) without appreciating that the said judgment had expressly been overruled by this Court in the later case of Dr. Muhammad Safdar v. Edward Henry Louis (PLD 2009 SC 404). In the latter judgment this Court had clarified that the penal provisions contained in the Illegal Dispossession Act, 2005 could not be given retrospective effect in view of the provisions of Article 12(1) of the Constitution of the Islamic Republic of Pakistan, 1973. It is not disputed before us that the alleged dispossession of respondent No,1 had come about in the year 2002, i,e, about three years before introduction of the Illegal Dispossession Act, 2005 and, thus, the said Act had no retrospective application to the case in hand.

3. For what has been discussed above the delay in tiling of the present petition is condoned, this petition is converted into an appeal and the same is allowed with the result that the impugned order passed by a learned Division Bench of the Lahore High Court; Rawalpindi Bench, Rawalpindi on 1-3-2010 as well as the impugned order passed by a learned Judge-in-Chamber of the Islamabad High Court, Islamabad on 19-5-2009 are set aside. As a necessary consequence of the above finding the complaint filed by respondent No, 1 against the appellants under the Illegal Dispossession Act, 2005 is declared to be not maintainable and the order passed in that regard by the learned Sessions Judge, Islamabad is restored.