Abdul Hameed vs Ghulam Farid etc.

W.P No. 3859 of 2014.

Abdul Hameed Ghulam Farid etc.

14.02.2014 Malik Saleem Iqbal Awan, Advocate for the petitioner.

Abdul Hameed-petitioner by way of constitutional petition under article 199 of the Constitution of Islamic Republic of Pakistan, 1973 assailed the vires of order dated 30.11.2013 passed by the learned Additional Sessions Judge, Mianwali, whereby the complaint filed by the petitioner under section 3 of the Illegal Dispossession Act, 2005 has been dismissed and respondents No.1 to 3/accused have been acquitted of the charge.

2.Briefly, the petitioner filed a complaint under section 3 of the Illegal Dispossession Act, 2005 on 07.03.2011 against respondents No.1 to 3, wherein it was alleged that due to demise of father of complainant in 1992/1993, he became owner of agricultural and commercial land in Mauza Rokhari Pakka, Tari Khel Kacha and Yaru Khel Pakka i.e fifty kanals, fifty two kanals and four kanals respectively along with one residential house situated in village Tari Khel, where the petitioner- complainant, his minor sister along with his mother resided. It is averred in the complaint that, Ghulam Farid-respondent No.1 and others stolen precious

articles after breaking the locks of outer door of the house in the year 2005 when petitioner (minor at that time) along with his mother went to meet his relatives. In this regard mother of the petitioner moved application to police. In February, 2006 the petitioner-complainant along with his minor sister and mother went to meet his relatives in Piplan, when respondents No.1 to 3/accused with common intention forcibly entered into the house and illegally possessed their residential house and shops. However, they illegally and unlawfully occupied all the landed property of the petitioner-complainant. The petitioner-complainant through respectable of the area approached respondents No.1 to 3 and requested them to vacate the possession but they flatly refused to vacate the same.

3.Thereafter the matter was sent to the SHO, Police Station Mochh for inquiry under section 3 of the Illegal Dispossession Act, 2005. Nasrullah Khan, SI after inquiry submitted his report. On receipt of report and recording of cursory evidence charge was framed against respondents No.1 to 3 on 20.10.2011, to which they pleaded not guilty and claimed trial.

4.To prove his case, the complainant produced as many as two witnesses i.e complainant appeared as PW-1 and Mst. Basheeran Khatoon as PW-2. Nasrullah Khan, SI appeared as C.W-1.

5.Respondents No.1 to 3 were examined under section 342 Cr.P.C, wherein respondents No.1 to 3 did not opt to appear as their own witness as provided under section 340(2) Cr.P.C to disprove

the allegations leveled against them, however, they opted to lead defence evidence in the shape of certified copies of application for partition of land including “Tareeq Tajve Taqseem” and order dated 28.05.2012 of Halqa Revenue Officer consisting of 10 pages Ex.DB/1-10. In response to the question why this case against them and why PWs deposed against them, the respondents No.1 to 3 made the same deposition, which is as under:- Father of complainant Ghulam Naseer was my brother and we were joint owner of the land 50-kanals agricultural land situated in Rokhri Pakka, 52 kanals in Tari Khel Kacha, 04-kanals in Yaru Khel. All construction were make by my brother Ghulam Yaseen and complainant has no concern with the constructions of house and shops etc. Ghulam Naseer died about 20 years back, after his death mother of complainant went to her parents house and started living there along with complainant and her other children. She also took with her all her luggage/house hold articles. House of parents of mother of complainant is also jointly owned by my father and father of mother of complainant because my father and father of mother of complainant were real brothers. Actually quarrel regarding the partition of the land had arisen due to which mother of complainant/wife of Ghulam Naseer filed miscellaneous applications against us which were found false. Regarding the land civil litigation is also pending in the

civil court. Therefore, to pressurize us and to take valuable portion of property complainant has filed this false complaint. We never dispossessed complainant and his mother from any property”

6.The learned counsel for the petitioner has contended that the learned Additional Sessions Judge has erred in law while coming to the conclusion that the petitioner has failed to aver to the allegations leveled in the complaint; that the petitioner was forcibly dispossessed by the respondents No.1 to 3; that the learned trial court has misread the evidence of complainant’s witnesses and wrongly acquitted/respondents No.1 to 3 from the charge thus the impugned order is suffering from legal infirmities and is liable to be declared as illegal and void.

7.Arguments of the learned counsel for the petitioner has been heard and record perused.

8.The available record shows that the petitioner has not mentioned in his complaint as to when he was dispossessed from the disputed property and the land in question. He has not given the description and boundaries of the land, house and shops, which was the subject matter of the complaint. PW-2 Bashiran Khatoon during cross examination deposed as under:- “A rupt was incorporated in Police Station Mochh on 24.01.2008 on my application. I have not stated in that rupt that two months prior to 24.01.2008 accused dispossessed me from my house. Confronted with Ex.DA where it is so recorded” Moreover, it is admitted by PW-1 and PW-2 that all the property mentioned in the complaint is owned by father of

PW-1 and husband of PW-2 & accused jointly and revenue record also reflects the same position, whereas they stated that accused have not given them any share. PW-2 Bashiran Khatoon admitted this fact that after death of her husband, she went to the house of her parents where she kept residing. She volunteered that due to the behaviour of the accused, she shifted her residence. The record further shows that the petitioner/complainant was not dispossessed from the properties subject matter of complaint illegally or forcibly. The complainant/petitioner has also not asserted that accused/respondents No.1 to 3 were a property grabber. From the complaint, it reveals that the petitioner along with his mother and sister acquired the ownership by way of inheritance in the year 1992-93 and PW-2 mother of the petitioner moved application in 2008 upon which a rupt was incorporated in Police Station Mochh on 24.01.2008 and same was found false. The record shows that civil suit was pending adjudication before competent court of law. The petitioner has admitted that accused filed a suit for partition of joint agricultural land before Tehsildar, Mianwali. PW-2 Bashiran Khatoon admitted during cross examination that it is correct that real dispute between them and accused is regarding the partition of joint property. It is well settled principle of law that all the co-sharers enjoy one and same status and until partition of joint property no one could be considered as exclusive owner of the land. As such, the provisions of section 3 of the Illegal Dispossession Act, 2005 are not attracted in the instant case. In my view, the findings drawn by the trial court are neither perverse nor suffer from any material irregularity. In view of the above discussion, the petitioner has failed

to make out the case falling within the purview of the Illegal Dispossession Act, 2005. He has failed to make out any prima facie case against the respondents No.1 to 3. Resultantly, this petition being meritless is hereby dismissed in limine.

(Aalia Neelum) Judge Approved for reporting.

Judge *Tariq