Shah Barat and others Vs Riz Hussain and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

Criminal Revision No.26-D of 2025 with Cr.Misc. No.375-D of 2025

Shah Barat and others Versus Riaz Hussain and others

JUDGMENT

For petitioners: Syed Abid Hussain Shah Sherazi, Advocate.

For respondents: Mr. Inamullah Kundi, Asstt: A.G and Mr. Nadeem Abbas Baloch, Advocate.

Date of hearing 11.9.2025

INAMULLAH KHAN, J.- Through the instant petition under sections 435/439 read with section 561-A Cr.P.C, the petitioners have called in question the order dated 01.7.2025 of learned Additional Sessions Judge, Paharpur, D.I.Khan, vide which application of respondent No.1 moved under section 7 of the Illegal Dispossession Act, 2005 for restoration of possession was allowed.

2.The facts giving rise to the instant petition, in brief, are that respondent No.1 filed a complaint under sections 3/4 of the Illegal Dispossession Act, 2005 against the petitioners, alleging that on 13.11.2024, the petitioners, in the presence of Muhammad Javed Khan and Muhammad Masoom Khan forcibly took possession of the property, detailed in the complaint, of which the complainant is lawful owner. The respondent No.1 also filed an application under section 7 of

the Illegal Dispossession Act, 2005 for restoration of possession.

3.After hearing arguments, the learned Additional Sessions Judge, Paharpur, D.I.Khan allowed the application of respondent No.1 vide order dated 01.7.2025, hence the instant petition by the petitioners.

4.I have heard the arguments of learned counsel for the parties and have gone through the record.

5.There is no denial to the fact that the object for which the Illegal Dispossession Act, 2005 was promulgated is to stop and prevent the forced dispossession of owner or occupier of the immovable property by the persons having antecedents in land grabbing or in committing fraud. The procedure under the Act ibid provides filing of complaint under section 3, whereafter the trial Court has to record the statement of complainant and also to call report from the police officials regarding the dispute pending between the parties over the property so that such material could be tentatively looked into for the purpose of summoning the accused persons. Section 4 of the Act of 2005 empowers the Court to take cognizance of the complaint and under section 5 of the Act of 2005, procedure for the purpose of investigation is provided. Under section 6 of the Act of 2005, the Court can act to attach the property until the final decision of the case, if it is satisfied that none of the parties

are/were in possession of the property immediately before commencement of the offence and under section 7 of the Act of 2005, the Court has power to grant interim relief.

6.The point agitated by the parties in the instant petition pertains to the applicability of Section 7 of the Act of 2005 which is therefore, reproduced here for ready reference:--

"7. Eviction and mode of recovery as an interim relief.---(1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession.

7.The perusal of above section manifests that the grant of interim relief is subject to the condition "during trial". Trial means determination of issues adjudging the guilt or the innocence of a person. The person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the Court informs him of the same The trial thus commences only on charges being framed. The expression during trial has been interpreted by the Hon'ble Supreme Court in the case of Haq Nawaz and others. Vs. The State and others (2000 SCMR 785) in following words:--

" From a review of above provisions of the Code, it is quite clear to us that taking of cognizance of the case by the court is not synonymous with the commencement of trial in a case. Taking cognizance of case by the court is the first step which may or may not culminate into the trial of the accused. The trial in a criminal case, therefore, does not commence with the taking of the cognizance of the case by the court.”

8.The procedure which leads to the framing of the charge is governed by sections 265(c) and 265(d) of the Criminal Procedure Code. By virtue of section 9 of the Act of 2005, Criminal Procedure Code is applicable to it, therefore, it is mandatory upon the trial Court to comply with the provisions of sections 265(c) and 265(d), Cr.P.C before commencing the trial. Under section 265(c), Cr.P.C, the accused is entitled to be supplied the relevant documents of the complaint in order to enable him to know the exact nature of allegations before he faces the trial. The purpose whereof is to afford the accused sufficient time to study the allegations against him and to prepare his defence if any. In clause (b) to subsection (2) of section 265-C Cr.P.C, it is further provided that the copies of the complaint or any other document which have been filed by the complainant shall be supplied to the accused free of cost not later than seven days before the commencement of the trial. The supply of the relevant copies of the complaint to the accused before seven days of the commencement of the trial has a direct

connotation to the framing of charge, which means that the trial of an accused would not start unless the relevant documents are supplied to him in terms of section 265(c), Cr.P.C. which shall then lead to framing of charge under section 265(d), Cr.P.C.

9.Under section 265(d) Cr.P.C, the Court, after perusing the police report, the complaint and all other documents and statements filed by the prosecution, is of the opinion regarding availability of sufficient grounds to proceed with the trial, it shall frame a charge in writing against the accused. The study of above provisions of law shows that the trial would not start until a period of seven days after supplying the relevant copies to the accused in terms of clause (b) to subsection (2) of section 265 Cr.P.C has expired and charge is framed, which can be considered as a first step towards the commencement of trial.

10.Admittedly in the present case charge has not been framed against the petitioners, and even they have not been supplied the copies of the complaint and relevant documents on the basis of which learned trial Court has passed the impugned order. Learned trial Court has not attended itself to the condition precedent appearing in section 7 of the Act of 2005 before passing the impugned order which is, therefore without lawful authority and not sustainable in the eyes of law.

11.Another intriguing feature of the case is that vide order sheet dated 07.02.2025, the learned trial Court fixed the complaint for arguments on its maintainability for which it was adjourned three times but subsequently it was left unattended and on 01.7.2025, the impugned order was passed. Once the learned trial Court fixed the complaint for arguments on its maintainability, it was incumbent upon it to have first decided the question of maintainability.

12.I have perused the case-law relied upon by the learned counsel for the respondent, with due respect to the dictum laid therein, I am of the view that the facts and circumstances of the present case are altogether different, hence the same is not applicable hereto.

13.For the reasons mentioned above, the instant petition is accepted, the impugned order dated 01.7.2025 is set-aside with the result, the application under section 7 of the Act of 2005 shall be deemed to be pending before the trial Court which shall decide it afresh after framing the charge and affording the right of hearing to the parties, of course, first deciding the question of maintainability of the complaint.

Announced. Sd/-- Dt:11.9.2025. JUDGE Habib/*

(SB)

Hon’ble Mr. Justice Inamullah Khan