Muhammad Ibrahim Vs State

JUDGMENT SHEET

PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No.1251-A of 2016

JUDGMENT

Date of hearing...............24.07.2017.............................................

Petitioner(s) ...(Muhammad Ibrahim) by Mr. Shabbir Hussain Gigyani, Advocate.........

Respondent(s)...(The State etc)by M/S Khan Nawaz, Advocate and Raja Muhammad Zubair, AAG

SYED MUHAMMAD ATTIQUE SHAH, J.-

The petitioner through instant petition has challenged the validity of orders dated 08.10.2016 and 28.11.2016 of Additional Sessions Judge-I, Haripur, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A and 439 Cr.P.C for quashment of the said orders being illegal, arbitrary, perverse with the following prayer:-

“It is, therefore, humbly prayed that, by invoking the Constitutional powers conferred under Article 199 of the Constitution r/w inherent powers U/S 561-A & Revisional Powers U/S. 439

Cr.P.C., it is humbly prayed that on acceptance of this petition, the impugned orders dated 08-10-2016 & 28-11-2016 of the learned trial Court may very graciously be quashed and restoration of the trial/complaint may kindly be directed alongwith grant of any other adequate remedy deemed fit by this august Court. ”

2.Brief facts of the present writ petition are that the present petitioner filed a complaint under sections 3 and 4 of the Illegal Dispossession Act, 2005 before the learned Additional Sessions Judge-I, Haripur. The learned trial Court recorded statement of the present petitioner and after hearing arguments on maintainability, the complaint was admitted for further proceedings. Respondent No.1 was summoned by the learned trial Court, who put his appearance before the Court and submitted an application for his acquittal under section 265-K Cr.P.C, which was dismissed by the learned trial Court vide its order dated 20.04.2016. The case was fixed for evidence on 03.10.2016 but due to holiday on that date, the case was again posted for 08.10.2016. However, on that very date, the complaint was dismissed for non-prosecution and

want of proof and respondent No.1 was discharged.

The complainant on getting information about dismissal of the said complaint, submitted application for restoration thereof on the same date, which too was later dismissed by the learned trial Court vide its order dated 28.11.2016. The petitioner has now challenged the validity of impugned orders dated 08.10.2016 and 28.11.2016 passed by learned Additional Sessions Judge-I, Haripur before this Court by filing the instant writ petition.

3.Learned counsel for petitioner argued that both the impugned orders dated 08.10.2016 and 28.11.2016 are illegal and against the material available on record of the case and thus the same are not maintainable in the eye of law and prayed for acceptance of present writ petition by setting aside the impugned orders and restoration of the complaint by remanding back the case to the learned Additional Sessions Judge-I, Haripur for its adjudication on merits.

4.On the other hand, learned counsel for respondent No.1 vehemently controverted the

arguments of learned counsel for petitioner and argued that no illegality has been committed by the learned lower Court below. He has also urged that the present writ petition is not maintainable against the impugned orders passed by learned lower Court below and prayed for dismissal of the same.

Learned AAG appearing on behalf of

State supported the contentions of learned counsel for petitioner and argued that both the impugned orders are illegal and have been passed against the material available on record of the case. Therefore, the same are not maintainable in the eye of law and liable to be set aside.

5.Arguments of the learned counsel for the parties heard and record perused with their valuable assistance.

6.Perusal of record reveals that complaint was filed under section 3 and 4 of the Illegal Dispossession Act, 2005 on 13.04.2015 and statement of the complainant was recorded on that very date. Later, notice was issued to respondent No.1, wherein he appeared and submitted an application under section 265-K Cr.P.C, which

application was rejected by respondent No.2 vide its order dated 20.04.2016. Subsequently, respondent No.1 was charged under section 3 of Illegal Dispossession Act, 2005 to which he pleaded not guilty and claimed trial. However, on 08.10.2016 the said complaint was dismissed for non- prosecution by respondent No.2 and respondent No.1 was discharged. The complainant/petitioner on that very day i.e. 08.10.2016 submitted an application for restoration of the said complaint, which was dismissed vide order dated 28.11.2016 by the learned trial Court. The precise question of law involved in the present case now is:- “whether after framing of charge under section 3 of the Illegal Dispossession Act, a complaint can be dismissed for non-prosecution and accused can be discharged”.

7.However, before dilating upon the

above referred legal question, this Court would first like to discuss the purpose and object of the Illegal Dispossession Act, 2005. The preamble of the Act ibid clearly reflects that the Act ibid has been brought for the protection of lawful owners and occupiers of the immovable property from their

illegal and forceful dispossession at the hands of land grabbers and land Mafias and to further provide a quick remedy to the affectees and victims of illegal and forceful dispossession and also to discourage and curtail the illegal activities of the land grabbers and mafias. Section 3 of the Act ibid, completely bars unlawful entry of land grabbers and mafias into immovable property and further prohibits them from illegal dispossession of lawful owners and possessors from the said property. Whereas section 4 provides that the offence under section 3 would be non-cognizable and it would be triable by the Court of Sessions. Whereas section 5 has provided procedure for investigation of the offence and trial of complaint under the Act ibid. From the aforesaid discussion it clearly established that the very purpose of the Act ibid is to provide a forum for quick investigation and trial of the offences under the said Act.

8.Now coming to the above legal question involved in the present case. The Act ibid has not provided any procedure for trial of complaint by Court of Sessions, however, section 9 of the Act

provides that “Provisions of the Code of Criminal Procedure, 1898 (V of 1898) shall applied to the proceedings under this Act.” As the proceedings under the Act ibid initiates from submission of complaint to the Court of Sessions. Now we advert to the complaint cases, which are governed under Chapter VXI of Code of Criminal Procedure, wherein dismissal of complaint is provided by section 203 Cr.P.C, which is reproduced below for sake of ready reference and convenience:- “203. Dismissal of complaint. The Court before whom a complaint is made or to whom it has been transferred or sent may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202; there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing.”

Similarly, section 247 Cr.P.C provides procedure for acquittal of accused, when complainant fails to appear before the Court. The same is reproduced below for sake of convenience:-

“247. Non appearance of complainant. If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, not withstanding anything herein before contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day :

Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case:

Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non compoundable.

The above mentioned provisions of section 247 Cr.P.C provides for acquittal of accused if the complainant fails to appear before the Court, which acquittal is appealable under Section 417 (2) of Cr.P.C. However, in the present case, the learned trial Court while dismissing the complaint has discharged the respondent No.1, which is illegal

because once charge is framed then under section 265-H of Cr.P.C either the accused is to be acquitted or convicted. There is no other alternative available to the trial Court except the above legal course.

9.This Court is of the firmed view that once charge is framed in a complaint case, then the very complaint can be dismissed for non- prosecution. However, the said dismissal would be resulted in acquittal of the accused. In other words, once charge is framed against the accused, then he cannot be discharged from the said case rather he can only be convicted or acquitted from the charge so framed. In the present case, respondent No.2 has committed grave illegality while discharging the accused from the case. By doing so he has failed to properly exercise his vested jurisdiction, therefore, the said order is not only illegal but the same is also corum-non-judice.

10.Keeping in view the above stated facts, reasons and discussion made thereupon, this Court reached to an inescapable conclusion, that the impugned orders dated 08.10.2016 and 28.11.2016 passed by the learned lower Court are illegal.

Therefore, on acceptance of present writ petition, the impugned orders referred to above are set aside and the case is remanded back to the Court of learned Additional Sessions Judge-I, Haripur for its decision on its merits strictly in accordance with law.

Dt.24.07.2017. JUDGE

JUDGE

M.Saleem/*