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H C J D A 38
Judgment Sheet
IN THE LAHORE HIGH COURT, MULTAN BENCH
MULTAN
(JUDICIAL DEPARTMENT)

Writ Petition No.6393 of 2009

Taimoor Ahmad & another vs. Addl. Sessions Judge & 9-others

Date of hearing 25.01.2016

Petitioners by Mr. Kaleemullah Buzdar,

Advocate

Respondent No.2 by Malik Muhammad Latif

Khokhar, Advocate

The State/Respondents No.7 to 10 by Mehar Nazar Abbas Chawan,

Assistant Advocate General
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Farrukh Gulzar Awan, J. Through the above captioned
constitutional petition under Article 199 of The Constitution of Islamic
Republic of Pakistan, 1973, petitioners Taimoor Ahmad and Muhammad
Altaf have called in question the legality of order dated 3.7.2009 passed by
the learned Additional Sessions Judge, Mian Channu in private complaint
titled “Saad Ahmad Khan vs. Taimoor Ahmad & 9 others” filed by
respondent No.2 under Sections 3, 4, 7 & 8 of The Illegal Dispossession
(Act XI of 2005) whereby after inquiry under Section 202 Cr.P.C., the
petitioners and respondents No.3 to 10 were summoned to face the trial of
aforesaid private complaint.
2. Succinctly, the facts of the case are that respondent No.2 filed the
aforementioned private complaint against the petitioners and respondents
No.3 to 10 alleging therein that on 27.4.2009 at about 4 O’clock, the
petitioners along with respondents No.3 to 6 while armed with fire arms,
forcibly dispossessed respondent No.2 from his agricultural land measuring
79-Kanals, 15-Marlas situated in square No.53, Qilla No.1 to 10 and square
No.54 Qilla No.1, in Chak No.2/8-AR, Tehsil Mian Channu, District
Khanewal. It was further alleged that the aforesaid persons in connivance
with respondents No.7 to 10 got prepared false and forged documents in
respect of the property in dispute in order to deprive respondent No.2 from
his lawful property.
3. Learned trial Court, after recording cursory evidence of respondent
No.2, referred the matter to the learned Area Magistrate for inquiry under
Writ Petition No.6393 of 2009 2

Section 202 Cr.P.C. and also to visit the spot through his subordinate, who
after recording the cursory statements of witnesses, deputed his Naib Court
for spot inspection. The Naib Court visited the spot, recorded statements of
witnesses, obtained affidavits, prepared map of the land and submitted his
report and the learned Area Magistrate while relying on the said report,
forwarded complaint under Section 202 Cr.P.C. being prima facie made out
against the petitioners and respondents No.3 to 10 to the learned trial Court,
who on receiving said report, summoned the petitioners as well as
respondents No.3 to 10 to face the trial under the Act ibid in the terms of
impugned order dated 3.7.2009. Hence, this writ petition.
4. Learned counsel for the petitioners has contended that dispute
between the parties was essentially of civil nature and both the parties had
filed civil suits against each other prior to the aforementioned alleged
incident; that the learned Civil Court had already issued injunctive order in
respect of the property in dispute; that the procedure provided under Section
202 Cr.P.C. would not be applicable to the proceedings initiated under this
Act being barred by Section 9 of the Act ibid, which can only be applicable
when no specific provision is provided under the Act having overriding
effect and as such the impugned order is liable to be set aside.
5. On the other hand learned counsel for respondent No.2 assisted by the
learned Assistant Advocate General has vehemently opposed this petition.
6. Arguments pro and contra have been heard. Available record perused.
7. Upon the aforesaid complaint of respondent No.2, learned trial Court
directed the learned Area Magistrate for holding an inquiry under Section
202 Cr.P.C. after spot inspection. Illegal Dispossession Act, 2005 is a
Special Law having overriding effect in the terms of Section 4 and has been
promulgated to rid the people from menace of Qabza groups and land
grabbers and also to protect the right of owners and lawful occupants as
well. The trial of an accused under the Illegal Dispossession Act, 2005
cannot be equated with the trial in a complaint under Section 190 Cr.P.C.
8. Under this Act cognizance of offence under Section 4 can be equated
with Section 154 Cr.P.C. and the provisions of Section 5(1) of the Act ibid
can be equated with report under Section 173 Cr.P.C. Reliance in this
respect is placed on the landmark judgment of Hon’ble Supreme Court of
Pakistan reported as “Mst. INAYAT KHATOON and others Versus
Writ Petition No.6393 of 2009 3

MUHAMMAD RIAZ and others (2012 SCMR 229). The relevant

paragraph is reproduced as under:-
“In fact complaint under the Act could be equated as complaint under
Section 154, Cr.P.C. whereas report under Section 5(1) could be equated
as complaint under Section 173 Cr.P.C. The Court on perusal of such
report and other material could take cognizance as provided under Section
190, Cr.P.C. but in no way the complaint under Section 5(1) can be
equated as private complaint to be processed under Section 200, Cr.P.C.
before a Magistrate.”
9. Under Section 9 of the Act ibid, the provisions of Code of Criminal
Procedure have specifically been made applicable to the proceedings under
this Act unless barred by any of its own provision. Upon taking cognizance
under Section 4 of the Act ibid, the learned trial Court has to follow the
procedure specifically provided under Section 5 of the Act ibid instead of
procedure provided under Section 202 Cr.P.C. being barred under Section
9 of the Act ibid. The procedure adopted by the learned trial Court is
foreign to the language of this Act and is not appreciateable. Learned trial
Court has committed material irregularity and illegality while forwarding the
matter to the learned Area Magistrate for inquiry under Section 202 Cr.P.C.,
which is not sustainable and is liable to be set aside.
In view of above, the writ petition in hand is allowed, impugned
order dated 3.7.2009 is set aside and the case is remanded to the learned
trial Court with the direction to proceed with the trial in the terms of
Section 3, 4 & 5 of the Act ibid. Respondent No.2 is directed to appear
before the learned trial Court on 8.2.2015. Since the matter is old one
relating to year, 2009, therefore, the learned trial Court is directed to
expedite the conclusion of trial preferably within a period of 30-days
from the next date of hearing by conducting day to day proceeding
under intimation to this Court through the Deputy Registrar (J).

(Farrukh Gulzar Awan)

Judge
APPROVED FOR REPORTING

JUDGE
Asif*