Waheed Ahmad Siddiqui vs Asj etc.

Writ Petition.No.5465/2014 Waheed Ahmed Siddiqui Addl. Sessions Judge, etc.

21.05.2014. Mr.Muhammad Khalid Chaudhary, Advocate. Mr.Ashfaq Ahmad Kharal, AAG.

Petitioner-Waheed Ahmad Siddiqui by way of filing instant Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has assailed vires of order dated 16.09.2013 passed by the learned Additional Sessions Judge, Lahore whereby complaint filed by the petitioner under Sections 3, 4, 5, 7 & 8 of the Illegal Dispossession Act, 2005 was dismissed without summoning the respondents No.2 and 3.

2.Briefly the petitioner filed a complaint under Sections 3, 4, 5, 7 & 8 of the Illegal Dispossession Act, 2005 on 15.01.2013 against respondents No.2 & 3 wherein it was alleged that soon after getting the possession of the plot by the complainant, the respondents No.2 & 3 forcibly and illegally dispossessed the complainant to some area/portion approximately more than 04-Marlas having size of 26 x 38 from the disputed land. It is alleged that respondents No.2 & 3 illegally and unlawfully occupied the land of petitioner.

3.Thereafter the matter was sent to the Station House Officer, Police Station, Township, Lahore for inquiry under Section 5 of the Illegal Dispossession Act, 2005, who inquired into the matter and denied the version of the petitioner in his report.

4.To prove the case, complainant appeared before the court and got recorded his cursory statement on 06.03.2013

whereas to support the version of complainant, Saeed Ahmad Siddiqui and Sheraz Khan also got recorded their cursory statements on 13.03.2013 respectively but astonishingly names of above said witnesses were not mentioned in the complaint filed by the petitioner- complainant.

5.Learned counsel for the petitioner has submitted that the learned Additional Sessions Judge has erred in law while coming to the conclusion that petitioner has failed to prove the allegations levelled in the complaint; that petitioner was illegally dispossessed by the respondents No.2 & 3; that the learned trial court has misread the contents of complaint and cursory statements of complainant as well as witnesses and wrongly dismissed the complaint without summoning the accused-respondents No.2 & 3. Thus, the impugned order is suffering from illegal infirmities, which is liable to be declared as illegal and void.

6.I have gone through the available record, it is an admitted fact that the petitioner and respondents No.2 & 3 are real brothers. On perusal of complaint as well as cursory statement of the complainant-petitioner, its reflect that not only the time and date but year of commission of offence is also missing in the complaint and no proof regarding dispossession is adduced by the complainant– petitioner. Non mentioning of such facts by the complainant-petitioner in his complaint create serious doubt with regard to applicability of the provisions of Illegal Dispossession Act, 2005. Apart from, civil litigation is sub- judice before the learned Civil Court. The complaint as well as cursory statement of the complainant and witnesses are silent and did not disclose that respondents No.2 & 3 are land grabbers or belong to land mafia or “Qabza group”

rather they are real brothers of petitioner. The Hon’ble Apex Court in case titled “Habib ullah and others v. Abdul Manan and others” (2012 SCMR 1533) has held as under:

“S.3----Purpose and applicability of the Illegal Dispossession Act, 2005---Scope---Said Act was applicable only to those accused persons who had credentials or antecedents of Qabza group and were involved in illegal activities and belonged to a gang of land grabbers or land mafia.”

7.The dispute between the parties over possession of property does not fall within the purview of Illegal Dispossession Act, 2005. Moreover, the dispute is purely of civil nature and same is admittedly sub-judice before the competent court of law. The facts and the circumstances of the case are insufficient to hold that the case falls under Section 3 of the Illegal Dispossession Act, 2005. The petitioner has failed to make out the case falling within the purview of the Illegal Dispossession Act, 2005. Thus the learned Additional Sessions Judge, Lahore has rightly dismissed the complaint of petitioner without summoning the respondents No.2 & 3 vide order dated 16.09.2013, which can not be interfered by this Court in Constitutional Jurisdiction.

8.Resultantly, petition in hand stands dismissed.

(Aalia Neelum) Judge Approved for reporting.

A.S.Khan.