انکوائری اور تفتیش میں فرق
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PLJ 2024 Cr.C.
1202
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
NOOR KHAN--Petitioner
versus
STATE, etc.--Respondents
Crl. Rev. No. 2454 of 2022, decided on 27.6.2024.
Illegal Dispossession Act, 2005 (XI of 2005)--
----Ss. 3 & 5(1)--Criminal Procedure Code, (V of 1898),
Ss. 202, 435 & 439--Suit property was partitioned with consent of
parties--Depositing of dues--Possession was delivered to petitioner--Illegal
occupants--Petitioner was dispossessed--Lodging of
FIR--Cross-version--Complaint filed by petitioner was dismissed--No inquiry was
conducted--No order for investigation--Police record was not summoned--Motive
of occurrence--Challenge to--Court has neither conducted inquiry properly nor
ordered for investigation, so much so on day of dispossession an FIR was also
registered with corresponding cross version but Court did not even bother to
summon police record despite fact that motive of occurrence was
dispossession--Court has also not attended fact that possession was handed over
to complainant through warrant of possession issued by a competent
authority--Revision petition allowed.
[P. 1210 & 1211] A
2019 PCr.LJ 665; PLD 1986 Lahore 256; 1968 PCr.LJ 1526;
1991 SCMR 1608 and AIR 1968 Mad. 117 ref.
Mr. Sajjad Hussain Tarar, Advocate for Petitioner.
Mr. Fakhar Abbas, Deputy Prosecutor General.
Nemo for Respondents despite notice.
Date of hearing: 27.6.2024.
Order
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 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 8.09.2021 (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 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 PCr.LJ 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 complain 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 Ali 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 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 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 non-cognizable
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 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
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 PCr.LJ 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 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 PCr.LJ 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 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 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; or
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.
(Y.A.) Petition allowed
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