Law: Illegal Dispossession Act, 2005

Section: 3,4, 7, 8

Law: Code of Criminal Procedure (CrPC), 1898

Section: 512

Illegal Dispossession Act (XI of 2005)---
----Ss. 3 & 4---Criminal Procedure Code (V of 1898), S. 512---Prevention of illegal possession of property---Trial in absentia---Scope---Application of petitioner for abatement of entire proceedings in the case due to death of his father, (one of the accused) and on account of declaration of two other accused persons as proclaimed offenders, was dismissed---Validity---Section 512, Cr.P.C., provided that if an accused person had absconded and there was no immediate prospect of arresting him, the Court competent to try such person for the offence complained of may, in his absence, examined the witnesses (if any) produced on behalf of the prosecution and record their depositions---Any such depositions may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he was charged---Said provision was self-explanatory whereunder trial Court was vested with authority to record evidence in absence of absconding accused---Even otherwise, trial/proceedings in complaint under the Act of 2005 were to be conducted in letter and spirit of the provisions particularly Ss.3, 7 and 8 of the Act of 2005, which entailed in-built mechanism to conduct proceedings and to conclude the same in due course---In view of above, impugned order appeared to be in accordance with law on the subject---Petition being devoid of merits was dismissed with the directions that matter to the extent of conviction of petitioner's father had been over on account of his death and proceedings to the extent of absconding accused shall be carried out in accordance with the provisions on the subject.
2006 SCMR 1287 and 2019 PCr.LJ 131 ref.
Mst. Itrat Zahida and others v. President ABL and others 2006 SCMR 1287; Bondada Gajapathi Rao v. The State of Andhra Pradesh AIR 1964 SC 1645 and Muhammad Sharif and another v. Muhammad Sadiq and another 2019 PCr.LJ 131 rel.

JUDGMENT
ARBAB MUHAMMAD TAHIR, J.--- Through the listed revision petition in terms of Section 435 read with Section 439 Cr.P.C, petitioner namely Fazal Noman Sabir (son of Fazal Inam Sabir-accused since died) impugns order dated 06.07.2023, passed by the learned Additional Sessions Judge-Islamabad- (East), whereby his application for abatement of entire proceedings of the case due to death of his father, one of the accused and on account of declaration of two other accused persons as proclaimed offender, was dismissed, by observing that "evidence of the complainant is to be recorded in absentia of proclaimed accused persons to preserve the same for using in case of their arrest and they will also be provided right of cross-examination." It was further observed in paragraph No.14 that:-
"Nevertheless, the applicant while continuously watching the proceedings of the complaint himself filed an application to afford him an opportunity of crossexamination to the PWs showing his interest in the disputed property, therefore, his application was allowed vide order dated 09.06.2023 with addition of implicating him as respondent into the petition for two reasons firstly in case of success of the complainant into the complaint, the order for restoration of the possession be passed against him as per dictum laid down in the case of Muhammad Sharif (ibid), secondly he has not denied to be in possession of the disputed property rather shown his keen interest, and his unalienable right with property, therefrom implicated as respondent vide order dated 09.06.2023, against which no relief given by Hon'ble Islamabad High Court, Islamabad. Additionally, his conduct also depicts his overwhelming interest in the complaint while filing multiple applications to rebut the stance of the complainant and strive hard to bring at end the proceedings of the complaint without its logical and despite his father was blamed to be illegal and unauthorized possession of the disputed property, which the petitioner has succeeded."
2.    Precisely, subject matter of the lis is "land/house measuring 17 Marla, bearing Khewat No.780, Khatooni Nos.1384 to 1448/22, Khasra Nos. 3237, 4411, 4437, 4452, situated in Mauza Hamak, Zone V, Islamabad" ('subject property'). As per documents available on file, on 19.10.2015, respondent No.1 namely Haji Abdul Khaliq Awan ('complainant') filed complaint under Sections 3 and 4 of the Illegal Dispossession Act, 2005 ('Act of 2005') against respondents 2 and 3 namely Muhammad Aslam Malik and Malik Touqeer (proclaimed offender) and Fazal Inaam Sabir, father of the petitioner. Initially, proclaimed offenders and father of the petitioner Fazal Inaam Sabir were acquitted in terms of Section 265-K Cr.P.C by the Trial court vide order dated 18.03.2016. The complainant assailed the said order before this Court through W.P. No.1658 of 2016 which, along with connected W.P. No.3853 of 2014 was allowed vide order dated 10.06.2022 and pursuant thereto by setting aside the impugned order, matter was remanded to the Trial Court for decision afresh in accordance with law on the subject after giving due opportunity of hearing to the parties.

3.    In post-remand proceedings, respondents 2 and 3 Muhammad Aslam Malik and Malik Tauqeer absconded and after completing codal formalities, declared proclaimed offenders vide order dated 27.03.2023. Vide the same order, proceedings to the extent of Fazal Inaam Sabir, father of the petitioner were abated due to death of said accused person. Vide order dated 26.05.2023, learned Trial Court proceeded to record evidence in terms of Section 512 Cr.P.C in view of the law laid down in case law reported as 2006 SCMR 1287 and 2019 PCr.LJ 131. Thereafter, on 06.06.2023 petitioner filed application praying to allow him to appear and participate in the proceedings. The Trial Court allowed the said application vide order dated 09.06.2023. The petitioner then joined the proceedings and was formally charge sheeted on 21.06.2023. Subsequently, on 04.07.2023, petitioner filed another application with title "application for abatement of entire proceedings in the case on behalf of Fazal Noman Sabir", with prayer "that the entire proceedings may kindly be dropped due to death of the accused Fazal Inaam Sabir (deceased), the file may kindly be consigned till the proclaimed offenders are arrested and brought before this court in the interest of justice". The said application of the petitioner was dismissed by the Trial Court vide order dated 06.07.2023, being impugned through the instant petition.

4.    Learned counsel argued that since one of the accused, father of the petitioner, had died and rest of the two had been declared proclaimed offenders, Trial Court cannot proceed with the complaint as proceedings to the extent of father of the petitioner already stood abated due to his death whereas under the law, trial in absentia cannot be held against absconder accused; that petitioner, in no way is connected with the commission of alleged offence and only joined the proceedings in order to protect his rights; that petitioner cannot be held guilty for the alleged offence; that under the law, provisions of Code of Criminal Procedure are applicable upon proceedings under the Act of 2005 where under in case of death of an accused, appeal shall stand abated in terms of Section 431 Cr.P.C as appeal is always considered continuation of trial, therefore, proceedings in trial would also be abated on the death of the accused. Lastly, learned counsel prays for setting aside of the impugned order.