Illegal dispossession act 2005 inquiry is compulsory and court can't just rely on revenue report .

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

Crl. Rev. No.2454 of 2022.

Noor Khan.

Vs. The State, etc.

S.No. of

order/

Proceedings

Date of

order/

Proceedings

Order with signature of Judge, and that of

parties of counsel, where necessary.

27.06.2024. Mr. Sajjad Hussain Tarar, Advocate for the petitioner.

Mr. Fakhar Abbas, Deputy Prosecutor General.

Nemo for the respondents despite notice

Solicitation is made through this petition for revising the

order dated 04.12.2021, passed by the learned Additional

Sessions Judge, Chiniot, whereby, complaint of the petitioner

filed under section 3 of the Illegal Dispossession Act, 2005

(the Act) was dismissed.

2. Petitioner tabled the fact of the dispossession from his

landed property before the Court in terms that out of total land

measuring 1642 Kanals in Khata No.117 situated in Mauza

Aasian, Tehsil & District Chiniot, he along with his family

members is owner of land measuring 68 Kanals 05 Marlas,

whereas, respondents No.2 to 6 are illegal occupants of land

measuring 12 Kanals 07 Marlas in Killa Nos.21 & 22 of square

No.28 and due to said reason, Khata No.117 was got

partitioned with the consent of both the parties. According to

which, 12 WANDA JAAT were prepared and the petitioner

along with other family members were allotted WANDA

No.07, warrant of possession was issued and after completion

of such proceedings and depositing their dues in government

treasury by the parties, respective possession was delivered to

them on 10.09.2020. Further that on 03.10.2020 at 4:00 p.m.,

when the petitioner along with Murtaza and Qasim Ali was

present in his land, respondents No.2 to 6 armed with hatchets,

clubs and firearm weapons attracted to the spot, dispossessed

him from land measuring 08 Kanals 18 Marlas situated in Killa

No.21 and 3 Kanals and 09 Marlas in Killa No.22 (total land

measuring 12 Kanals 07 Marlas) relating to said WANDA

Crl. Rev. No.2454 of 2022.

No.07. During the occurrence, both the parties sustained

injuries, upon which, respondent No.2 got lodged FIR No.458

dated 03.10.2020 under sections 337-A(iv), 324, 337-L(2),

337-F(vi), 354, 337-A(i), 148, 149 PPC at Police Station

Saddar Chiniot against the petitioner and seven others,

wherein, cross-version of the petitioner’s side was also

recorded; petitioners’ party was arrested in said FIR and

respondents party destroyed their millet and maize crops and

illegally took over the possession of 12 Kanals and 07 Marlas

land referred above.

3. Learned Counsel for the petitioner states that since

3.10.2020, after dispossession, petitioner has been striving for

return of his valuable land, deprivation is soulful and

respondents while using delaying tactics have prolonged their

illegal occupation which is adding insult to injury and even

today, they are not before this Court. Learned counsel further

states that learned Additional Sessions Judge requisitioned the

revenue report which was based on the position of parties on

08.09.2021 (though dispossession was ante-dated) whereby

possession of 4 Kanal & 9 Marala land was shown in the

possession of Asia Bibi, respondent No. 5, which prejudiced

the mind of learned judge who held that this fact has been

concealed from the Court, because neither it was mentioned in

the complaint nor in the statements of witnesses, therefore, on

this sole ground complaint stood dismissed. On the other hand,

learned Deputy Prosecutor General states that learned Judge

has not conducted the inquiry within the spirit of section 5 of

the Act, and while responding to non-appearance of

respondents before this Court, he has referred section 440 of

Cr.P.C, stating that in criminal revision proceedings it is only

optional with the courts to hear the parties.

4. Heard; record perused.

5. On receiving of complaint, private prosecution regime in

vogue responds by recording cursory statements of witnesses

by the Court to find out tentatively the commission of any

offence. However, Court jurisprudence sometimes requires

Crl. Rev. No.2454 of 2022.

conducting of an inquiry under section 202 Cr.P.C. with

certain parameters including perusal of police record in

connected state case. According to case reported as

“MUHAMMAD JAWAD HAMID and another Versus Mian

NAWAZ SHARIF and others” (2019 P Cr. L. J 665), it was

held as under;

“39. Section 202 of the Code bestows vast powers upon the

court to ascertain the truth or falsehood of the complaint and in

this respect as it could direct any inquiry or investigation and

during inquiry it could examine the police file and final reports

including report of JIT to come to a definite conclusion, as it is

covered under the definition of material and if felt necessary

may examine the members of JIT, I.O in a private complaint or

any other witness recorded during investigation of said case so

that complete picture of the occurrence supported by relevant

material must be before him while passing an order under

section 204 (for summoning the accused), so that no innocent

person should face agony of trial and no culprit should go

unpunished.”

Further in a case reported as “MUHAMMAD IBRAHIM AND

OTHERS versus QUDRAT ULLAH RUDDY AND OTHERS”

(PLD 1986 Lahore 256), it was held;

“Looking at the provisions of section 202 from all angles, in the

event of an inquiry, the person conducting the inquiry should

not only record the evidence of witnesses produced by the

complainant, but should also examine the Investigating Officer,

or, in the alternative, call for and peruse the Ziminis…………..”

6. It has been learnt that Courts while dealing with prosecution of

complaint under illegal dispossession Act, 2005 follow a routine

pattern to record the cursory statements of witnesses, ask for police

comments and then make a mind to issue or decline process to the

accused persons. Offences under the Act are non-cognizable, no

FIR can be registered, and filing of a direct complaint is the

remedy, therefore, if the offence seems not committed, Court is not

bound to order for investigation as held by Supreme Court in a case

reported as “WAQAR AKLI and others Versus THE STATE

THROUGH PROSECUTOR/ ADVOCATE-GENERAL,

PESHAWAR and others” (PLD 2011 Supreme Court 181),

but if the commission of offence is apparent from the record,

Courts must conduct an exhaustive inquiry or order for an

investigation to get the relevant material collected for and against

the commission of alleged offence, and should not go for trial mere

Crl. Rev. No.2454 of 2022.

on the basis of cursory statements or documents uncertified.

Supreme Court of Pakistan in case reported as “Mst. INAYAT

KHATOON and others Versus MUHAMMAD RAMZAN and

others” (2012 SCMR 229) has held that trial of an accused under

Illegal Dispossession Act, 2005 cannot be equated as trial in a

complaint under section 190 of Cr.P.C. It is a special law may

override the provisions of Cr.P.C, therefore, Court may order for

investigation. That is the reason in year 2017, legislator felt the

need for conducting of investigation and inquiry one after another

and made changes in section 5 of the Act which is reproduced for

reference;

5. Investigation and procedure. (1) Upon a complaint the

Court may direct the officer-in-charge of a police station

to investigate and complete the investigation and forward

the same within fifteen days to the Court.

Provided the Court may extend the time within which such

report is to be forwarded in case where good reasons are

shown for not doing so within the time specified in this

sub-section:

Provided further that whenever a local inquiry is necessary

for the purpose of this Act, the Court may direct a

Magistrate or a revenue officer in the district to make

inquiry and submit report within a period as may be

specified by the Court. The report of the Magistrate or

revenue officer, as the case may be, shall be construed as

evidence in this case

(2). On taking cognizance of a case, the Court shall

proceed with the trial from day to day and shall decide the

case within sixty days and for any delay, sufficient reasons

shall be recorded.

(3). The Court shall not adjourn the trial for any purpose

unless such adjournment is, in its opinion, necessary in the

interest of justice and no adjournment shall in any case be

granted for more than seven days.

(4) On conclusion of the trial, if the complaint is found to

be false, frivolous or vexatious, the Court may award

compensatory cost to the person complained against which

may extend to five hundred thousand rupees.

As object of the Act is to protect the rights of owner or lawful

occupier, therefore, regime of law must be clearly understood

to give a prompt response against dispossession, grabbing,

controlling or occupying of the property without lawful

authority. Spirit of above section requires that on examining

the complaint and attached documents, Court may direct

officer incharge of police station to investigate and complete

Crl. Rev. No.2454 of 2022.

the investigation within given or extended period; which

means that on receiving such direction by officer incharge of

police station, chapter 25 of Police Rules, 1934 relating to

power of police officers to investigate becomes operative and

it shall be followed to observe all the processes given therein

including recording of statements under section 161 Cr.P.C. of

witnesses other than those whose cursory statements have

already been recorded, if any, plea of accused, inspection of

disputed site with spot recoveries if any, preparation of site

plan or seeking technical assistance by any expert (revenue,

settlement or consolidation officer) after obtaining revenue

record and preventing overt act from any side or further

dispute except power to arrest the accused without permission

by the Court because offence under section 3 of the Act is noncognizable and Court is equipped with power to direct arrest of

offenders as enunciated under sub-sections (2) & (3) of

Section-4 of the Act.

7. Police can investigate the non-cognizable case on direction

by Court in the same manner as meant for investigation of

cognizable case. Part of relevant provision (Rule 25.11 of

Police Rules, 1934) is reproduced as under;

25.11. Investigation in non-cognizable cases. - (1) No police

officer shall investigate a non-cognizable offence unless ordered

to do so by a competent magistrate under Sections 196-B or 202,

Criminal Procedure Code.

(2) When an investigation in a non-cognizable case is thus

ordered and is taken up by the police under Section 155(3),

Criminal Procedure Code, it must be carried through in the same

manner as if the offence were cognizable, except that no arrest

shall be made without a warrant. In every such case a police

officer making an investigation shall day by day enter his

proceedings in a case diary and submit them daily as prescribed

for cognizable cases in Police Rule 25.53. Case diaries shall be

submitted through the gazetted officer concerned to the court

which has ordered investigation. No copies shall be prepared or

kept by the police.

(Emphasis is supplied)

The above rule gives a clear indication that during

investigation day to day proceedings shall be entered in case

diaries which shall be dispatched to the Court and no record of

such diaries shall be kept by the police. Rule 25.53 (2) of

Police Rules, 1934 requires that case diaries shall be as brief as

Crl. Rev. No.2454 of 2022.

possible; shall not be swollen with lengthy explanations and

theories; shall be written either in English or in simple Urdu

and only such incidents of the investigation shall be included

as have a bearing on the case. Of course, on close of

investigation, all the outcomes suggested in Rule 25.57 of

Police Rules, 1934 shall be forwarded to the Court in the form

of a report under section 173 of Cr.P.C., and then Court may

decide to issue process against the accused or dismiss the

complaint as the case may be. It has been held in case reported

as “TAIMOR AHMAD and another Versus ADDITIONAL

SESSIONS JUDGE and 9 others” (2018 YLR 81) that section

4 of the Act can be equated with section 154 of Cr.P.C. and

report under section 5(1) of the Act with the report under

section 173 Cr.P.C. With a respectful dissent to above

observation, it is held that section 4 can be equated with

section 155 of Cr.P.C.

8. Investigation though provides material for trial yet its

admissibility is always subject to rules of evidence and opinion

of Court, therefore, legislator through section 5 of the Act has

also taken care of this situation by introducing a concept of

local inquiry which further empowers the Court that whenever

a local inquiry is necessary for the purpose of this Act, the

Court may direct a Magistrate or a revenue officer in the

district to make inquiry and submit report within a period

specified by the Court. Purpose of Act is as follows;

“Whereas it is expedient to protect the lawful owners and

occupiers of immovable properties from their illegal or forcible

dispossession therefrom by the property grabbers.”

Thus, when the circumstances of the case are of the nature that

Court deems it appropriate to obtain evidence, it shall order for

such inquiry because the report of the Magistrate or revenue

officer, as the case may be, shall be construed as evidence in

this case as per second proviso of section 5(1) of the Act,

therefore, appearance of Magistrate or revenue officer before

the Court as witness is not necessary. It is the like inquiry as

Crl. Rev. No.2454 of 2022.

conducted on the direction of Sessions Judge by the Magistrate

or any other person as mentioned in section 148 of Cr.P.C.

9. Section 9 of the Act says that unless otherwise provided

the provisions of the Code of Criminal Procedure, 1898 (V of

1898), shall apply to proceedings under this Act; therefore, to

better appreciate the situation at site Court can also go for local

inspection as well at the stage of preliminary inquiry or during

the trial. The relevant provision of Cr.P.C. is as follows;

539-B. Local inspection: (1) Any Judge or Magistrate may at any

stage of any inquiry, trial or other proceeding, after due notice to

the parties, visit and inspect any place in which an offence is

alleged to have been committed, or any other place which it is in

his opinion necessary to view for the purpose of properly

appreciating the evidence, given at such inquiry or trial and shall

without unnecessary delay record a memorandum of any relevant

facts, observed at such inspection.

(2) Such memorandum shall form part of the record of the case if

the Public Prosecutor, complainant or accused so desires, a copy

of the memorandum shall be furnished to him free of cost:

The practice of local inspection is approved by the Superior

Courts and its evidentiary value is subject to the principles laid

down in following cases;

“Judgment of Full Bench reported as “KARAMAT Versus

THE QUEEN” (PLD 1957 Privy Council 107):

“MUHAMMAD SADIQ and another versus MUHAMMAD

HUSSAIN” (PLD 1952 Azad J & K 13) “BAZAL

AHMED SOWDAGAR versus NUR MUHAMMAD” (PLD

1963 Dacca 852): “THE STATE THROUGH THE

ADVOCATE GENERAL, PROVINCE of BALUCHISTAN,

QUETTA versus JAMIL IQBAL” (PLD 1974 Quetta

28)“ABDUL RASHID Versus THE STATE and others”

(1999 YLR 1298 FSC): “Sardar INAYATULLAH KHAN

versus THE STATE and 3 others” (2000 YLR 2803): “Ch.

SAJID MEHMOOD Versus INSPECTOR GENERAL OF

POLICE, I.C.T., ISLAMABAD and 3 others” (2015 YLR

81):“ASFANDYAR and another Versus KAMRAN and

another” (2016 SCMR 2084): “JAHANZAIB KHAN

Versus SPECIAL JUDGE CNS COURT, LAHORE and

another” (2018 P Cr. L J 354)

10. On receiving complaint, Court is bound to ascertain the

truth and falsehood of the allegation, through inquiry and/or

investigation. Inquiry and investigation are not mutually

exclusive, Court can resort to both proceedings one after

Crl. Rev. No.2454 of 2022.

another. Let’s see what is an inquiry and investigation, and

when they be resorted to;

When Inquiry may be conducted

An inquiry is made in order to determine the truth or falsity of

a certain fact before an accused is charged with an offence.

Object of an inquiry is to determine the truth or falsity of

certain facts in order to take further action thereon; reliance is

placed on case reported as “MIR SANAD KHAN and 6 others

Versus THE STATE” [PLD 2014 Baluchistan 113]. An

inquiry may start with shadowy beginning. During the inquiry,

accused can be given opportunity to submit his stance and it

would not be an illegality. Case reported as “ALLAHYAR

Versus THE STATE” [1968 P Cr. L J 1526] is referred. Scope

of Section 202 of Cr.P.C. is to hold a preliminary inquiry and it

does not contemplate that a notice be issued to the accused

person before issuing a process but If the Court holding such

inquiry issues a notice to the accused before issuing process, it

would not vitiate the inquiry. Reliance is placed on cases

reported as “ANWAR ALI KHAN and others versus WAHID

BUX and others” [1991 SCMR 1608] & “MUHAMMAD

PANJAL Versus GHULAM SHABBIR JAT and 6 others”

[2004 YLR 967 (LHR)]. In an inquiry, Court has to ascertain

the truth or falsehood of the complaint which means that it

would attend both aspects i.e., truth and falsehood.

When investigation may be conducted

Investigation starts when a police officer forms a definite

opinion that there are grounds for investigation of a crime.

Reliance is placed on case reported as “ABHINANDAN JHA &

ORS. Vs. DINESH MISHRA” [AIR 1968 Mad 117] and it is

meant for collection of evidence. On the similar principles,

when any complaint is received by the Court, it starts inquiring

as to ascertain the truth or falsity of facts contained therein; if,

it comes to the conclusion that complaint is based on truth and

an offence appears to have been committed, and sufficient

Crl. Rev. No.2454 of 2022.

material is available to proceed with the trial, it issues process

against the accused; but if it has no sufficient material or

evidence, it can order an investigation for the purpose of

collection of evidence. Court can direct inquiry or

investigation one after another and its necessity can be

summarized by explaining some situations in an inquiry and

need for investigation thereafter, it is as follows;

What is an inquiry?

An inquiry is the process of reviewing an allegation to

determine;

1. whether the allegation is responsible;

2. the particular law or laws that may have been

breached; and

3. whether an investigation is warranted based on the

information provided in the allegation.

Below is a table describing examples of possible outcomes of

an inquiry;

Situation

Outcome

If the allegation is not

responsible.

The allegation is dismissed and

the matter concludes at

inquiry.

If the allegation is responsible

but a breach of law is not

substantiated.

The allegation is dismissed and

the matter concludes at inquiry.

If a breach is substantiated,

and the respondent accepts

responsibility,

and

further

investigation would not

uncover any new information

pertinent to the matter.

The matter concludes at inquiry.

If a breach is substantiated

but the respondent does not

accept responsibility.

An investigation is initiated.

If any issues identified

through the inquiry warrant an

investigation (e.g., other

individuals in addition to the

respondent involved in the

breach; other possible

breaches suspected).

An investigation is initiated.

What is an investigation?

An investigation is a systematic process, conducted by an

authorized person for the purpose of determining the validity

of an allegation. An investigation involves collecting and

examining any evidence related to the allegation and making a

Crl. Rev. No.2454 of 2022.

decision as to whether a breach of law has occurred.

Investigation must be conducted when:

1. the inquiry has not established whether or not a breach of

law has occurred;

2. a breach is substantiated at the inquiry stage but the

respondent denies/contests responsibility for the breach;

3. additional issues are identified through the inquiry.

The investigation process provides both complainant and

respondents with an opportunity to be heard as part of the

process of determining the validity of an allegation. This

generally triggers rights of due process under the law on how

to address allegations. That is the reason an investigation is

necessary or essential because it is conducted for collection of

evidence and parties have full opportunity to produce every

sort of material legally admissible or not. In this way issues are

narrow down by investigator with an opinion for and against

the commission of offence and Court is loaded with tangible

evidence as well.

11. In the present case, Court has neither conducted the

inquiry properly nor ordered for investigation, so much so on

the day of dispossession an FIR was also registered with

corresponding cross version but Court did not even bother to

summon the police record despite the fact that motive of the

occurrence was dispossession. Court has also not attended the

fact that possession was handed over to the complainant

through warrant of possession issued by a competent authority,

therefore, order impugned is set aside, complaint filed by the

petitioner shall be deemed pending and learned lower Court

after feeling the necessity either of investigation or inquiry, if

any shall proceed with the complaint in due course of law as

delineated above.

(MUHAMMAD AMJAD RAFIQ)

JUDGE

APPROVED FOR REPORTING

JUDGE

For more information call us 0092-324-4010279 Whatsapp Dear readers if u like this post plz comments and follow us. Thanks for reading .as you know our goal is to aware people of their rights and how can get their rights. we will answer every question, so we need your help to achieve our goal. plz tell people about this blog and subscribe to our youtube channel and follow us at the end of this post.