Lahore High Court Declares Pre-Trial Possession Order Under Illegal Dispossession Act Illegal – 2025 YLR 512
لاہور ہائیکورٹ نے قبضے کی واپسی کا قبل از وقت حکم کالعدم قرار دے دیا – 2025 YLR 512
📅 فیصلہ کی تاریخ: 24 جون 2024
📍 عدالت: لاہور ہائیکورٹ (بہاولپور بینچ)
👨⚖️ جج: جناب جسٹس صدیق محمود خرم
📝 مقدمہ کا پس منظر
مدعی جام ابراہیم نے 2018 میں Illegal Dispossession Act, 2005 کی دفعہ 3 کے تحت ایک نجی شکایت دائر کی کہ ملزمان نے انہیں غیر قانونی طور پر ان کی زمین سے بےدخل کیا۔ اس شکایت پر سیشن عدالت نے ملزمان کو طلب کیا۔
بعد ازاں مدعی نے دفعہ 7 کے تحت قبضہ واپس دلوانے کی درخواست دی، اور ملزمان نے دفعہ 265-K Cr.P.C کے تحت بریت کی درخواست دی۔
19 مارچ 2024 کو سیشن عدالت نے مدعی کی درخواست منظور کرتے ہوئے SHO کو قبضہ واپس دلوانے کا حکم دے دیا، جبکہ ملزمان کی بریت کی درخواست مسترد کر دی۔
یہ حکم اُس وقت دیا گیا جب چارج فریم ہی نہیں ہوا تھا اور ٹرائل شروع نہیں ہوا تھا۔
⚖️ عدالتِ عالیہ کا فیصلہ
درخواست گزاروں نے ہائیکورٹ سے رجوع کیا۔ عدالت نے قرار دیا کہ:
> 🔹 Illegal Dispossession Act 2005 کی دفعہ 7 کے تحت قبضے کی واپسی کا حکم صرف ٹرائل کے دوران دیا جا سکتا ہے۔
🔹 جب چارج فریم نہیں ہوا تو ٹرائل شروع ہی نہیں ہوا، لہٰذا 19 مارچ 2024 کو دیا گیا حکم غیرقانونی تھا۔
🔹 عدالت نے یہ حکم کالعدم قرار دے دیا۔
✅ اہم نکات
✅ قبضے کا حکم صرف ٹرائل کے دوران دیا جا سکتا ہے۔
✅ ٹرائل سے پہلے دیا گیا حکم قانون کے خلاف تھا، اس لیے کالعدم ہوا۔
✅ عدالت نے کہا کہ قانون کسی کام کا مخصوص طریقہ بتائے تو وہی طریقہ اختیار کرنا ضروری ہے۔
✅ اب چونکہ چارج ہو چکا ہے، عدالت نئی درخواست پر دوبارہ فیصلہ دے سکتی ہے۔
✅ ملزمان کو بریت کی نئی درخواست دائر کرنے کا بھی حق دیا گیا۔
✅ حاجی غلام محمد چونکہ اشتہاری قرار دیا گیا تھا، اس کی حد تک درخواست ناقابلِ سماعت قرار دی گئی۔
📚 قانونی حوالہ جات
Khalid Saeed v. Shamim Rizwan (2003 SCMR 1505)
Chaudhry Shujat Hussain v. The State (1995 SCMR 1249)
State Life v. DG Military Lands (2005 SCMR 177)
Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086)
🔴 2025 Y L R 512
[Lahore (Bahawalpur Bench)]
Before Sadiq Mahmud Khurram, J
Haji Ghulam Muhammad and 2 others---Petitioners
Versus
Additional Sessions Judge Liaquatpur, District Rahim Yar Khan and 47 others---Respondents
W..P No. 3894 of 2024, decided on 24th June, 2024.
🍀(a) Illegal Dispossession Act (XI of 2005)---🍀
----S. 7---Criminal Procedure Code (V of 1898), S.265-K---Illegal dispossession---Delivery of possession of property to owner---Application under S. 265-K of the Criminal Procedure Code, 1898, filed by the accused was dismissed by the trial Court---Validity---Admittedly, the trial of the case would have commenced after the charge had been framed---In the present case, charge was framed on 13.05.2024 whereas order for accepting the petition filed by complainant under S.7 of Illegal Dispossession Act, 2005, was allowed while application filed by accused under S.265-K Cr.P.C, was dismissed on 19.03.2024, prior to the commencement of the trial of the case instituted upon the private complaint---Trial Court passed the impugned order dated 19.03.2024 issuing a direction under S.7 of the Illegal Dispossession Act, 2005, to the S.H.O. concerned before the commencement of the trial, therefore, the same was not tenable---Trial had not commenced, therefore, no order could have been passed by the trial Court under S.7 of the Illegal Dispossession Act, 2005---In view of the matter, petition was allowed to the extent that the order dated 19.03.2024 passed by the Trial Court, whereby a direction was issued to the S.H.O. concerned to proceed under S.7 of the Illegal Dispossession Act, 2005, was set-aside, however, as charge had now been framed, therefore, the Trial Court shall be at liberty to pass a fresh order on the application filed by complainant under S.7 of the Illegal Dispossession Act, 2005, which application shall be deemed pending for the purpose of making any subsequent order---Petitioners shall be at liberty to file another application under S.265-K, Cr.P.C., before the Trial Court seeking their acquittal, which application shall be decided on the basis of the evidentiary material available on the record.
Khalid Saeed v. Shamim Rizwan and others 2003 SCMR 1505; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; State Life Insurance Corporation of Pakistan through Chairman and another v. Director General, Military Lands and Cantonments, Rawalpinidi and others 2005 SCMR 177 and Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086 rel.
🍀(b) Administration of justice---🍀
----If a thing is required to be done in a particular manner, then it has to be done in that manner and in no other manner.
Farooq Haider Malik for Petitioners.
Malik Javed Aslam Naich for Respondent No. 3.
Rana Sher Zaman Akram, Assistant Advocate General for the State.
Muhammad Ali, ASI.
🔴 Order
Sadiq Mahmud Khurram, J.---By way of this petition filed under Article 199 of the Islamic Republic of Pakistan, 1973 read with Section 561-A Cr.P.C., the petitioner has assailed the order dated 19.03.2024 passed by the learned Additional Sessions Judge, Liaquatpur, District Rahimyar Khan, whereby the application as submitted by the petitioners under section 265-K Cr.P.C. seeking their acquittal, was dismissed and the application as submitted by the complainant of the case under section 7 of the Illegal Dispossession Act, 2005, was allowed.
2. Brief facts of the case leading upto the filing of the instant petition are that Jam Ibrahim (respondent No.3) filed a private complaint titled "Jam Ibrahim v. Fayyaz Ahmed and 47 others" on 06.09.2018 in respect of an offence under section 3 of the Illegal Dispossession Act, 2005 and after holding of an inquiry of the said private complaint, the learned Additional Sessions Judge summoned the petitioners as well as other accused to face trial of the said case instituted upon the private complaint as filed by Jam Ibrahim (respondent No.3) vide order dated 08.01.2019. During proceedings of summoning of the accused, as summoned by the learned Additional Sessions Judge to face trial of the case instituted upon the private complaint as filed by Jam Ibrahim (respondent No.3), the respondent No.3 namely Jam Ibrahim filed an application under section 7 of the Illegal Dispossession Act, 2005 whereas on 02.03.2023, the petitioners filed an application under section 265-K Cr.P.C. seeking their acquittal before the learned trial court. As mentioned above, the application as filed by Jam Ibrahim (respondent No.3) was accepted by the learned Additional Sessions Judge vide his order dated 19.03.2024 whereas the application as filed by the petitioners under section 265-K Cr.P.C. was dismissed; hence the petition.
3. Learned counsel for the petitioners, at the very outset, submits that he has been instructed not to press this petition to the extent of allowing of application under section 265K Cr.P.C. as submitted, by the petitioners seeking their acquittal and to press this petition only to the extent of order passed by the learned Additional Sessions Judge dated 19.03.2024 issuing a direction to the S.H.O. concerned under section 7 of the Illegal Dispossession Act, 2005. Learned counsel for the petitioners has submitted that as the trial of the case had not commenced, therefore, no order under section 7 of the Illegal Dispossession Act, 2005 could have been passed.
4. Learned counsel for respondent No.3 (the complaint of the case instituted upon the private complaint) has submitted that the order dated 19.03.2024 passed by the learned Additional Sessions Judge, was passed in accordance with the law and did not merit any interference by this Court. Learned counsel for respondent No.3 further submits that petitioner No.1 namely Haji Ghulam Muhammad has been declared a proclaimed offender by the learned trial court, which order was passed on 29.03.2024. Certified copy of which has been appended with this petition itself.
5. Learned Assistant Advocate General has submitted that learned counsel for the petitioners is correct in saying that the learned Additional Sessions Judge could not have passed any order under section 7 of the Illegal Dispossession Act, 2005 before the commencement of the trial, however, has also submitted that the case instituted upon the private complaint of Jam Ibrahim (respondent No.3) had been pending since 06.09.2018, therefore, undue delay had been caused in the conclusion of the same.
6. I have heard the learned counsel for the petitioners, learned counsel for respondent No.3, learned Assistant Advocate General and perused the record with their able assistance.
7. Perusal of the record reveals that Jam Ibrahim (respondent No.3) filed a private complaint titled "Jam Ibrahim v. Fayvaz Ahmed and 47 others" on 06.09.2018 in respect of an offence under section 3 of the Illegal Dispossession Act, 2005 and after holding of an inquiry of the said private complaint, the learned Additional Sessions Judge summoned the petitioners as well as other accused to face trial of the said case instituted upon the private complaint as filed by Jam Ibrahim (respondent No.3) vide order dated 08.01.2019. During proceedings of summoning of the accused, as summoned by the learned Additional Sessions Judge to face trial of the case instituted upon the private complaint as filed by Jam Ibrahim (respondent No.3), the respondent No.3 namely Jam Ibrahim filed an application under section 7 of the Illegal Dispossession Act, 2005 whereas on 02.03.2023, the petitioners filed an application under section 265-K Cr.P.C seeking their acquittal before the learned trial court. As mentioned above, the application as filed by Jam Ibrahim (respondent No.3) was accepted by the learned Additional Sessions Judge vide his order dated 19.03.2024 whereas the application as filed by the petitioners under section 265-K Cr.P.C. was dismissed. As mentioned above, as the learned counsel for the petitioners has already submitted that he has been instructed not to press this petition to the extent of rejection of the petition filed under section 265-K, Cr.P.C. by the learned Additional Sessions Judge vide order dated 19.03.2024, therefore, nothing more is being discussed in this order with regard to that part of the order of the learned Additional Sessions Judge. With regard to the order of the learned Additional Sessions Judge passed by him under section 7 of the Illegal Dispossession Act, 2005 directing the S.H.O. concerned to proceed under section 7 of the Illegal Dispossession Act, 2005, it has been observed that reading of the language of Section 7 of the Illegal Dispossession Act, 2005 makes it mandatory that if any order is to be passed under the said section, it can only validly be passed if trial of the case has commenced. Admittedly, the trial of the case concerned would have commenced after the charge had been framed. In the present case, charge was framed on 13.05.2024 whereas order was passed on 19.03.2024, prior to the commencement of the trial of the case instituted upon the private complaint as filed by Jam Ibrahim (respondent No.3). For reference, Section 7 of the Illegal Dispossession Act, 2005 is being re-produced below:-
"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.
(2) Where the person against whom any such order is passed under subsection (1) fails to comply with the same, the Court shall, notwithstanding any other law for the time being in force, take such steps and pass such order as may be necessary to put the owner or occupier in possession.
(3) The Court may authorize any official or officer to take possession for securing compliance with its orders under subsection (1). The person so authorized may use or cause to be used such force as may be necessary.
(4) If any person, authorized by the Court, under subsection (3), requires police assistance in the exercise of his power under this Act, he may send a requisition to the officer-in-charge of a police station who shall on such requisition render such assistance as may be required.
(5) The failure of the officer-in charge of Police Station to render assistance under subsection (4) shall amount to misconduct for which the Court may direct departmental action against him."
As mentioned above, for the fact that the learned Additional Sessions Judge passed the impugned order dated 19.03.2024 issuing a direction under section 7 of the Illegal Dispossession Act, 2005 to the S.H.O. concerned before the commencement of the trial, therefore, the same is not tenable. If a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. It is well-settled principle of interpretation of statute that where any provision couched in negative language requires an act to be done in a particular manner then it should be done in the manner as required by the statute otherwise such act will be illegal.If a method is prescribed to do a thing in a particular manner, it must be followed in letter and spirit. When the law requires a thing to be done in a particular manner then it would be a nullity in the eyes of law, if not performed in that very prescribed manner. The general rule expounded by this Court is that the usage of the word 'shall generally carries the connotation that a provision is mandatory in nature. However, other factors such as the object and purpose of the statute and inclusion of penal consequences in cases of non-compliance also serve as an instructive guide in deducing the nature of the provision. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the interest that the provision is to be mandatory. To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen protected under the Constitution of the Islamic Republic of Pakistan, 1973. The rule of law constitutes the bedrock of governance. When the law stipulates that something has to be done in a particular manner that is how it should be done. And any person who exercises authority must do so in accordance with the law. Reliance in this regard is placed on the cases of Khalid Saeed v. Shamim Rizwan and others (2003 SCMR 1505), Chaudhry Shujat Hussain v. The State (1995 SCMR 1249), State Life Insurance Corporation of Pakistan through Chairman and another v. Director-General, Military Lands and Cantonments, Rawalpindi and others (2005 SCMR 177) and Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086). As mentioned above, the trial had not commenced, therefore, no order could have been passed by the learned Additional Sessions Judge under section 7 of the Illegal Dispossession Act, 2005.
8. In view of the matter, this petition is allowed to the extent that the order dated 19.03.2024 passed by the learned Additional Sessions Judge, whereby a direction was issued to the S.H.O. concerned to proceed under section 7 of the Illegal Dispossession Act, 2005, is set-aside, however, as charge has now been framed, therefore, the learned Additional Sessions Judge shall be at liberty to pass a fresh order on the application filed by Jam Ibrahim (respondent No.3) under section 7 of the Illegal Dispossession Act, 2005, which application shall be deemed pending for the purpose of making any subsequent order. The petitioners shall be at liberty to file another application under section 265-K Cr.P.C. before the learned trial court seeking their acquittal, which application shall be decided on the basis of the evidentiary material available on the record any evidentiary material produced by the petitioners before the learned trial court and without being prejudiced in any manner by the earlier order dated 19.03.2024 passed by the learned Additional Sessions Judge or by the fact that the charge has been framed against the petitioners on 13.05.2024 by the learned Additional Sessions Judge.
9. As petitioner No.1 namely Haji Ghulam Muhammad has been declared a proclaimed offender by the learned trial court and as the said order is still in field, therefore this petition to the extent of petitioner No.1 is dismissed as him having no locus standi to file this petition.
JK/G-11/L Petition allowed.