FAHID ULLAH KHAN and 3 others vs Mst. DIL PAZIR JAN and another
This writ petition challenged an order passed by the Additional Sessions Judge-I, Bannu, which dismissed the petitioners' application seeking the dismissal of a complaint filed under the Illegal Dispossession Act, 2005. The petitioners argued that the complaint was not maintainable because the trial court failed to record the complainant's statement on oath, as required by Section 200 of the Code of Criminal Procedure 1898. The Peshawar High Court examined the legal requirements for proceedings under the Illegal Dispossession Act, 2005. The Court held that while recording a statement under Section 200, Code of Criminal Procedure 1898 is a standard procedure, the failure to do so on oath in proceedings under the Illegal Dispossession Act, 2005 does not render the complaint liable to dismissal. Relying on established precedents, the Court determined that such an omission constitutes a curable procedural irregularity rather than a fatal defect. Consequently, the Court dismissed the petition, ruling that the complainant must be allowed to prove her case through evidence, and affirmed the trial court's decision to proceed with the matter.
- Is the failure to record a complainant's statement on oath under Section 200 of the Code of Criminal Procedure 1898 a fatal defect in proceedings under the Illegal Dispossession Act, 2005?
- Can a complaint be dismissed solely on the ground that the complainant's statement was not recorded on oath?
- Does the failure to record a complainant's statement constitute a curable procedural irregularity under Section 537 of the Code of Criminal Procedure 1898?
- Article 199, Constitution of Islamic Republic of Pakistan 1973
- Section 3, Illegal Dispossession Act, 2005
- Section 200, Code of Criminal Procedure 1898
- Section 537, Code of Criminal Procedure 1898
SYED AFSAR SHAH,. J.---Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, Fahidullah and three others, the petitioners, have impugned the order dated 14-6-2014 passed by learned Additional Sessions Judge-I Bannu, whereby their application for dismissal of the complaint on the ground of maintainability was disallowed.
2. We have heard arguments of learned counsel for the petitioners in motion and gone through the record appended with the petition.
3. It appears from the record available on file that on 15-2-2014, Mst. Dil Pazir Jan, the respondent/complainant, filed a complaint against Fahidullah and three others, the petitioners/respondents, under section 3 of the Illegal Dispossession Act, 2005, on the ground that she has been forcibly dispossessed by the respondents/petitioners from the premises in dispute bearing Khasra No, 463 situated in the local limits of Sokari Zabta Khan Bannu.
4. During the proceedings conducted by the learned trial Court, reports of the Investigating Officer and Patwari circle along with statements of P.Ws. Were made available when in the meanwhile, the petitioners/respondents moved the application for dismissal of the complaint which was vehemently resisted by the respondent/complainant vide order herein impugned.
5. From the very outset, learned counsel for the petitioners argued that since the statement of the complainant has not been recorded on oath, therefore, the complaint is not maintainable. He added that it is the requirement of law as a first step that statement of the complainant under section 200, Cr.P.C. Has to be recorded on oath and that by not recording statement of the complainant on oath, the learned trial Court has landed into the fields of error.
6. Admittedly and as is evident from the record, the learned trial Court has recorded statement of the complainant without administering oath to her, but for the proceedings under the Illegal Dispossession Act, 2005, it was not an essential requirement.
In a case titled Allah Wasaya and others v. Sikandar Hayat and others (2012 SCMR 193), the trial Court even did not record statement of the complainant in the first instance, but it was observed by their Lordships that the same was a procedural irregularity warranting interference but it did not warrant dismissal of the complaint.
Similarly, in another case titled Shahabuddin v. The State (2010 PCr.LJ 422 (Karachi), it has been ruled that it is not an essential requirement for proceedings under the Illegal Dispossession Act, 2005 that statement of the complainant be recorded before taking any other. Step therein, however, after the Court decides to take cognizance, then it must start to record his statement under section 200, Cr.P.C.
Again in a case titled Rana Muhammad Akram Khan v. Special Judge, Anti-Corruption Provincial, Faisalabad and others (2007 YLR 260 (Lahore), non-recording of statement of the complainant by the Court on receiving the private complaint was turned down as an irregularity curable under section 537, Cr.P.C.
Deriving wisdom from the above quoted precedents, the prayer of the petitioner for dismissal of the complaint on the ground of non-recording statement of the complainant on oath is turned down.
7. Adhering to the contention of the petitioner that the complainant was having no case and that she has filed the same malafidely, suffice it to say that in view of the record so far made available by the learned trial Court, the objection at this stage cannot be sustained. Let the complainant/respondent be given an opportunity to prove the contents of her complaint by adducing evidence and in which respect the learned trial Judge in the order herein impugned has already opined and rightly so.
8. In view of the above, the petition being without any substance stands dismissed.