2018 PLP 2 (YLRN)

SADIQ HUSSAIN BHATTI, J.

The applicant filed a complaint under sections 3 and 4 of the Illegal Dispossession Act 2005 ("the Act") seeking restoration of possession in respect of house bearing No. R-164, Block 6, Gulshan-e-Iqbal, Karachi ("the disputed property") which was dismissed vide the impugned order dated 25.4.2016 by 1st Additional Sessions Judge, Karachi East, hence present criminal revision application.

2. Brief facts of the case are that the applicant is widow of late Syed Shafaat Ali and respondent No.1 is son of late Syed Shafaat Ali from his first wife while respondent No.2 is wife of respondent No.1 and respondents Nos. 3 and 4 are daughters and son respectively of respondent No.1. The respondents are occupying the disputed property which is a cause of concern for the applicant as, according to her, the respondents are in illegal possession of the disputed property. Hence she filed a complaint under sections 3 and 4 of the Act, which, as stated above, was dismissed vide the impugned Order. Therefore, the applicant, feeling aggrieved, has approached this Court under its revisional jurisdiction.

3. Learned counsel for the applicant submitted that the learned trial Court has misdirected itself by referring to "Qabza Group" and "Qabza mafia" in the impugned Order as, according to the learned counsel, there is no such category mentioned in section 3 of the Act in order to restrict the scope and application of the Act. Learned counsel further submitted that the impugned Order is against the concept, scope and provisions of illegal Dispossession Act and therefore, is liable to be set aside and that the applicant is entitled to restoration of possession of the disputed property. In this regard learned counsel relied on the case of Shaikh Muhammad Naseem v. Mst. Farida Gul (2016 SCMR 1931). Learned counsel further submitted that the respondents are illegally occupying the disputed property and are liable to be ejected therefrom. Learned counsel also submitted that the trial Court failed to take into consideration that it is an admitted position that the disputed property is not in the name of respondent No.1 even then the learned trial Court did not issue any notice to the respondents, on the contrary, the complaint of the applicant was dismissed in limine. Learned counsel also submitted that the purpose of the Act, which is a special law, is to protect the right of possession of lawful owners or occupiers and not to perpetuate the possession of illegal occupants. Learned counsel further argued that whenever an act committed by an accused would come within the meaning of any of the words viz. dispossess, grab, control or occupy, then action could be initiated against him or her as provided under section 4 of the Act. In this regard he relied on the cases of Muhammad Akram and others v. Muhammad Yousaf and another (2009 SCMR 1066) and Nabi Bux v. State and others (2011 PCr.LJ 1300). While concluding his arguments, learned counsel submitted that the impugned Order is not sustainable in law and, therefore, prayed that the same may be set aside and its possession may be restored to the applicant.

4. On the other hand, learned counsel for the respondents submitted that the application filed by the applicant under sections 3 and 4 of the Act was clearly misconceived and was rightly dismissed by the learned trial Court as the respondents never dispossessed anyone illegally and were residing in the disputed property peacefully in their own right. It was further argued that since complainant is not owner of the disputed property and civil litigation is also pending between the parties in respect of title of the same, therefore, the present dispute does not fall within the ambit of provisions of Illegal Dispossession Act, 2005. Furthermore, learned counsel for the respondents, while referring to various averments made in the instant revision application and in other documents filed therewith, submitted that it is an admitted position that there are civil cases pending between the parties and, as such, the matter is of civil nature and will be decided by the Court of competent jurisdiction, therefore, the learned trial Court rightly dismissed the criminal complaint of the applicant. Learned counsel also submitted that since there is no illegality or irregularity committed by the trial Court, therefore, this Court will decline to interfere as no jurisdictional infirmity or any illegality was pointed in the impugned Order. Learned counsel submitted that since the respondents cannot be termed as "Qabza Mafia" or "Qabza Group", therefore, the complaint filed under sections 3 and 4 of the Act was not maintainable. It was also argued by the learned counsel that nowhere in the complaint it has been alleged that the respondents have forcibly dispossessed the applicant from the disputed property and illegally occupied the same. He, therefore, prayed for dismissal of the instant revision application. In support of his contentions learned counsel for the respondents relied on the cases reported as (i) Noor Zada v. Muhammad Khalid and others (2007 PCr.LJ 891), (ii) Quaid Johar v. Murtaza Ali and another (PLD 2008 Kar. 342), (iii) Muhammad Qasim v. Station House Officer, PS Khudabad and others (2016 MLD 1238), (iv) Ghulam Raza v. Samo Khan (2016 YLR 2138), (v) Ibrahim v. The State and others (2016 MLD 2085), (vi) Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769), (vii) Muhammad Nadeem Khan v. Muhammad Hussain Shoro and others 2016 PCr.LJ 1722) and (viii) Jamia Darul Uloom Islamia through its President/ Chairman v. Ilyas and other (2016 PCr.LJ 1777).

5. Learned APG also supported the impugned Order and submitted that instant revision application is liable to be dismissed as the dispute between the parties is of civil nature and civil cases are pending between the parties before Courts of competent jurisdiction.

6. I have heard the learned counsel for the parties and have perused the record and the case law cited before me.

7. Under section 435 of the Criminal Procedure Code, this Court can call for and examine the record of any proceeding before any inferior criminal court situated within its territorial jurisdiction for the purpose of satisfying itself as to the correctness, legality or Mpropriety of any finding, sentence or order recorded or passed. Thus, all that this Court can do in the instant case is to examine the impugned Order and to see whether the same is correct or whether the finding arrived at in the impugned Order suffers from any illegality or impropriety, thus, calling for interference by this Court.

8. A perusal of the impugned Order dated 25.04.2016, which is available at page 29 of the file, reveals that on the complaint filed by the applicant under sections 3 and 4 of the Act, a report was called from the concerned SHO, who reported that respondent No.1 is ready to live the share of the applicant (i.e. second wife of the deceased) to her in respect of the disputed property. It is further gathered from the impugned Order that a civil suit filed by the deceased husband of the applicant is pending against the respondent No.1 in the court of competent jurisdiction. In such view of the matter the learned trial Court arrived at a finding that the dispute between the parties relates to a house and it was further held that "there is no evidence that the proposed accused / respondents are habitual land grabbers and belong to Qabza group, therefore, no case against the proposed accused under this law is made out." In view of such finding the learned trial Court dismissed the complaint of the applicant in the following terms: "In view of the above dictum laid down it appears that proposed accused/respondents are neither property grabber/land mafia/Qabza group it seems that it is a dispute between the parties with regard to the civil dispute/nature; therefore, no prima facie case is made out against the accused to take cognizance, consequently the complaint in hand is dismissed in limine, leaving the complainant to approach the competent Civil Court of law for redressal of her grievances."

9. A perusal of the above quoted operative para of the impugned Order shows that the learned trial Court dismissed the complaint of the applicant on two grounds viz. (i) that the respondents are not property grabbers/land mafia/Qabza group and (ii) that there is a civil dispute between the parties with regard to the disputed property, therefore, provisions of sections 3 and 4 of the Act are not attracted. While the second ground for dismissal of the complaint is correct, the first ground is to be scrutinized in the light of law laid down by a larger bench of the Hon'ble Supreme Court in the case of Mst. Ghulam Bibi and others (supra). 10. 1n the case of Mst Ghulam Bibi and others (supra), the legal question before the learned Larger Bench of the Hon'ble Supreme Court was whether anyone who commits the offence described in section 3 of the Illegal Dispossession Act, 2005 can be prosecuted, as held in the case of Muhammad Akram v. Muhammad Yousaf (2009 SCMR 1066), or the scope and applicability of the Illegal Dispossession Act is restricted and only those persons can be prosecuted under sections 3 and 4 of the Act who hold the credentials and antecedents of a land grabber or Qabza Mafia, as held in the case of Bashir Ahmed v. Additional Sessions Judge (PLD 2010 SC 661). The learned Larger Bench of the Hon'ble Supreme Court after discussing the matter threadbare and after examining the case law in favour and against, came to the conclusion that the law laid down by the Hon'ble Supreme Court in the case of Muhammad Akram (supra), to the effect that anyone who commits the offence described in section 3 of the Illegal Dispossession Act, 2005 can be prosecuted regardless whether such person(s) can be termed land grabber(s) or Qabza Group or not, is good law while the law laid down in the case of Bashir Ahmed (supra), which restricts the scope and applicability of the Act is not good law.

11. In view of the above law laid down by the learned Larger Bench of the Hon'ble Supreme Court the trial Court was not justified to dismiss the complaint of the applicant on the basis of the finding that the proposed accused/respondents are not property grabbers/land mafia/Qabza group. It is held that even if the respondents were not persons falling in the category of Land Mafia and Qabza Groups, even then they can be prosecuted if it is proved that they have committed an act which falls within the ambit of section 3 of the Act. However, the other finding, on the basis whereof the complaint of the applicant was dismissed, namely, that the dispute between the parties is of civil nature as there is civil litigation pending between the parties, is correct and on this ground alone, the complaint was rightly dismissed by the learned trial Court.

12. In the case of Muhammad Qasim (supra), the facts were somewhat similar as in that case a complaint under sections 3 and 4 of the Act was dismissed by the trial Court which prompted the applicant to approach this Court by way of a criminal revision application. However, a learned single Judge dismissed the same inter alia observing that "Even otherwise, dispute is pending before civil Courts, which are Courts of ultimate jurisdiction for deciding the civil right of the party and status of a document could only be determined by a competent civil Court. Consequently, I am of the considered view that instant case does not fall within the scope of Illegal Dispossession Act, 2005."

13. Similarly, in the case of Noor Zada (supra), private complaint filed by the petitioner against his unlawful dispossession by the accused respondents from a plot was dismissed by the Sessions Court and the High Court, while hearing the Constitutional Petition filed by the applicant against the order of dismissal of his private complaint, held that the matter is sub judice before a Civil Court which was competent to decide the dispute between the parties, and dismissed the petition.

14. In the case of Quaid Johar (supra), also this Court held that the trial Court had rightly dismissed the complaint as the controversy between the parties was a dispute of civil nature for which the parties were advised to approach civil Court.

15. Furthermore, the complaint, filed by the applicant under sections 3 and 4 of the Act, does not disclose any allegation which could attract the penal provisions of section 3 of the Act as nowhere it is alleged that the respondents were not residing in the disputed property. In this regard reference may be made to para 5 of the revision application which clearly says that "after acquiring both plots bearing R-164 and R-165 all Respondents started permanently living on the upper floor..." Thus. it is clearly admitted by the Applicant herself that during the life time of the deceased the respondents were living in the upper floor of the disputed property.

16. In view of the above discussion, the learned trial Court rightly dismissed the complaint of the applicant after appraising the material available before it by coming to the conclusion that the dispute between the parties is of civil nature in respect whereof civil litigation is pending before Court of competent jurisdiction. I do not find any infirmity or illegality in the impugned order with regard to the above finding, calling for interference by this Court under its revisional jurisdiction.

17. Accordingly, with the above modification in the impugned Order, I dismiss instant revision application. JK/N-25/Sindh Revision dismissed.