P L D 2009 Karachi 117 (PLP)

ZAFAR AHMED KHAN SHERWANI, J.

This revision application under sections 435/439, Cr.P.C. read with section 561-A, Cr.P.C. has been filed against an order dated 25-6-2008 passed by the learned III-Additional Sessions, Malir, Karachi in Criminal Complaint No.65 of 2007 under section 3(2) of the Illegal Dispossession Act, 2005 (the Act of 2005) whereby the learned Additional Sessions Judge dismissed the complaint on the ground that the respondent was neither a member of Qabza group nor land mafia, and the dispute is of civil nature.

2. The brief facts leading to this application are that' the applicant had filed the above complaint pleading therein that he and his brother Muhammad Sultan jointly purchased the land measuring 1-18 acre from Survey No.19 situated in Deh Gangiaro Tapo Landhi Bin Qasim Town Malir, Karachi (property in question) from Abdul Shakoor Jokhio by way of sale deed dated 26-1-2002 which was registered on 3-9-2002 with the Sub-Registrar, Agriculture, Karachi and occupied the same. They were enjoying its peaceful possession but in the middle of November of 2007 they came to know that the property in question had been illegally occupied by the respondent who started to dig the foundation of the wall over it. The applicant asked the respondent No.1 to vacate the same but he refused to do so. The matter was reported to the Town Nazim who after verification of the document asked the respondent to vacate the same but to no avail, hence the complaint was filed. Learned Additional Sessions Judge, called for the report from the concerned police station which was submitted in support of the claim of the applicant but the learned Addl. Sessions Judge dismissed the complaint vide the order impugned in this revision.

3. I have heard the learned counsel for the parties and perused the record.

4. It was contended by the learned counsel for the applicant that the learned trial Court has failed to appreciate the fact that the allegations made in the complaint had been verified by the police and there was nothing on the record adverse to the case of the applicant but in spite of that the complaint was dismissed. On the flimsy grounds that since the respondent was not a member of Qabza. Group or Land Mafia, therefore, no action could be taken under the Act of 2005, and that the dispute is of civil nature. He contended that as per law laid down in the Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 SC 423 and followed in Malik Muhammad Naeem Awan v. Malik Aleem Majeed and 5 others PLD 2008 Lah. 358 and Iftikhar Ahmed v. Zulfiqar Ali and 3 others PLD 2008 Lah. 59, all the cases pertaining to the illegal dispossession of lawful owner or a occupier come under the pale of the Act of 2005 and it was not necessary that only these cases in which the dispossession has been made by a land grabber or a member of land mafia can be entertained under the Act of 2005, therefore, the learned Additional Sessions Judge was required to take cognizance in the matter and process was required to be issued against the respondent but it dismissed the complaint, hence this Court under its revisional jurisdiction can examine the same.

5. On the other hand, learned counsel for the respondent as well as State counsel opposed the above arguments and contended that the order was passed according to law and this application is liable to be dismissed.

6. I have carefully considered the above arguments and perused the record. The objections filed by the respondent No.1 show that the plea of both the parties in support of their case is that they are occupying the property in question in their own rights after having been purchased from different owners on different dates. As per case of the applicant, he purchased the property in question from one Abdul Shakoor Jokhjio on 264-2002 through registered sale-deed dated 3-9-2002 and occupied it whereas the father of the respondent purchased the same from one Shaikh Masood Ahmed on 4-1-2008 through a registered sale deed and got the name mutated in the record of rights. Since the respondent No.1 purchased the land much after the applicant, therefore, the applicant had a prima facie case with regard to the legal possession thereon. This fact along with the report of the police in his support was sufficient to take cognizance of the matter under the Act of 2005 by the learned trial Court but it dismissed the same. The findings of the learned Additional Sessions Judge that since the applicant failed to prove that the respondent was a member of Qabza Group, therefore, no action could be taken under the Act of 2005 on the basis of the case reported in Zahoor Ahmed and 5 others v. The State and 3 others PLD 2007 Lah. 231 is also not tenable under the law. In view of the judgment of the Hon'ble Supreme Court in the case of Rahim Tahir (supra) in which it has been held that the provision of the Illegal Dispossession Act, 2005 are applicable in all cases of dispossession except the case which was pending before any other forum at the time of promulgation of the Act of 2005. The other two cases i.e. Malik M. Naeem Awan and Iftikhar Ahmed (supra) are also based on the principle laid down by the Hon'ble Supreme Court. In view of the law laid down by the apex Court the decision reported in PLD 2007 Lahore 231 cannot be relied on.

8. In view of the above discussion, it is clear that the impugned order is illegal and therefore, requires to be set aside. Consequently, this revision is allowed as prayed, the impugned order is set aside and the complaint is remanded to the learned trial Court for disposal according to law. N.H.Q. /A-126/K Revision petition allowed.