ZAFAR KHAN vs SADDAM HUSSAIN S — 2024 PLD 140 PESHAWAR-HIGH-COURT

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ZAFAR KHAN VS SADDAM HUSSAIN S. 539-B---Illegal Dispossession Act (XI of 2005), Ss. 3 & 7---Illegal dispossession---Local inspection---Scope---After hearing the final arguments, the Trial Court appointed a local commission for spot inspection---Validity---Petitioner/complainant had averred in his complaint that he was owner in possession of the disputed land along with his son on which the accused/respondent had made illegal construction in his absence---Trial Court observed that the stance of accused was unambiguous that he had no concern with khasra Nos. 1276 and 1277 and that his cousins were owners in khasra No. 1277 in which they had raised construction which had been attributed by the complainant to him---Petitioner, as per statement, had purchased the land through registered deed of 1980 with specification of the boundaries---Trial Court had held that the spot inspection was the sole option to determine as to whether or not the alleged construction had been made within the boundaries mentioned in the deed relied upon by the complaint---Perusal of S. 539-B, Cr.P.C., showed that the power of spot inspection could not be delegated by Trial Court to any other officer even to a subordinate Judicial Officer rather the exercise shall be made by the Presiding Officer itself---Power under S. 539-B, Cr.P.C., could not be a substitute for collection of evidence nor the Court could assume the status of an Investigating Officer---Section 539-B, Cr.P.C., envisaged that in case spot inspection was deemed necessary, the Trial Court would without unnecessary delay record a memorandum of any relevant facts observed at such inspection---Such object could not be achieved through appointment of a local commission because the report submitted by a local commission could not be equated with the memorandum mentioned in S. 539-B(1), Cr.P.C.---Trial Court instead of deciding the case in the light of evidence produced by petitioner had committed an irregularity by appointing a local commission for the purpose of collecting evidence, therefore, the impugned order could not legally sustain---Thus, petition was allowed by setting aside impugned order and the Trial Court was directed to decide the case in the light of evidence brought on record during inquiry and trial.

ZAFAR KHAN vs SADDAM HUSSAIN S — 2024 PLD 140 PESHAWAR-HIGH-COURT

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