2013 PLP 133 (YLR)

SYED HASAN AZHAR RIZVI, J.

This is an application under section 561-A, Cr.P.C. for quashment of proceedings pending against the applicant before the court of learned IVth Additional Sessions Judge Karachi (Eas) initiated on the basis of F.I.R. in Crime No.1007 of 2009 dated 14-9-2009 of Police Station Ferozabad, Karachi under sections 448/380, P.P.C.

2. Brief facts of the case as alleged in the F.I.R. lodged by complainant son Muhammad Asif wherein he stated that on 6-3-2009 the complainant learnt from a family friend that the applicant has circulated certain documents for sale of complainant's property by impersonating himself as owner of the property bearing Plot No.136, admeasuring 1181 sq. yards, Block 7/8, Karachi Memon Cooperative Housing Society Limited, Osman Essa Bhai Road, near Hill Park, Karachi with constructed boundary wall and two rooms for servants. On 12-5-2009 the complainant son on a routine visit to the property surprised him when he saw that the respondent No.1 has illegally dispossessed the complainant from the said property by removing Sanober Khan the caretaker appointed by the complainant. This fact was notified to the Karachi Memon Cooperative Housing Society Ltd. and Karachi Co-operative Housing Society Union Limited and in response whereof the Karachi Memon Cooperative Housing Society wrote to the custodian of law to cooperate with the complainant in restoring the possession of the illegally dispossessed complainant.

3. On 2-9-2009 the respondent No.2 through her son and attorney Muhammad Asif filed Complaint No.105 of 2009 before the learned Sessions Judge Karachi (East) against the applicant and others under sections 3, 4 and 5 of the Illegal Dispossession Act, 2005, with the following prayers:-- "(a) To restore the possession of the said property to the complainant or her attorney on proper verification in presence of the Nazir of this Hon'ble Court, through the S.H.O./respondent No.5. (b) To take cognizance and pass the order for registration of criminal complaint against the respondents Nos.1 and 3, his accomplices/land grabbers illegally in occupation of the said property. (c) Restrain the respondent No.6 from transferring the said property until the complainant is restored into the said property. (d) Any other relief or relief's which this Hon'ble Court may deem fit and proper under the circumstances of the case. (e) To grant reasonable compensation and cost to the complainant."

4. The inquiry was completed and on the basis of report submitted by the police, the Court admitted the complaint and took cognizance vide order dated 5-10-2009. The trial Court framed the charge against the applicant on 21-12-2009, who pleaded not guilty. The applicant filed application under section 265-K, Cr.P.C. in the Court of IV Additional Sessions Judge Karachi (East), which was dismissed vide order dated 17-5-2010 on the ground that veracity of the dispute cannot be ascertained without recording of evidence.

5. I have heard Messrs Mehmood A. Qureshi and Muhammad Nazir Tanoli, learned counsel for the applicant, Mr. Arshad Tayebaly, learned counsel for the respondent No.2 and Mr. Abdulllah Rajput, learned Assistant Prosecutor-General, Sindh.

6. Mr. Mehmood A. Qureshi, learned counsel for the applicant has contended that as per the complaint that on 6-3-2009 complainant learnt from a family friend that the applicant has circulated some documents for the sale of the property and he further stated that on 12-5-2009 the son of the complainant visited the property and saw that the caretaker Sanober Khan has been removed by the applicant, but has not alleged that caretaker has never informed him that he has forcibly been removed and dispossessed by the applicant, while the so-called mutation letter prepared by the complainant indicates that the same was prepared on 2-5-2009 and as such it is clearly demonstrated that the complainant is neither owner nor the occupier of the property in question and was never in possession/occupation of the property. He contended that nothing available on record against the applicant for committing any offence as three ingredients of sections 3, 4, 5 and 7 of the Illegal Dispossession Act are completely missing and in absence of the basic ingredients no case is made out, hence the proceedings before the trial Court are the abuse of the process of the Court and are liable to be quashed.

7. Learned counsel next contended that the respondent No.2 intentionally and deliberately suppressed the fact regarding decree passed by Civil Court in Suit No.763 of 2009 filed by the applicant while filing the complaint. He urged that the suit was decreed on 26-3-2010 against the respondent No.2 and others whereas the respondent No.2 filed complaint against the applicant on 2-9-2009 and the Civil Court while decreeing the suit held that "the defendants are restrained from dispossessing the plaintiff from the suit property without due course of law." He submitted that complaint under the Illegal Dispossession Act, 2005 cannot be entertained as the matter of possession of the property in question is being regulated by a Civil Court. He also submitted that neither the respondent have possession letter in her favour nor were in possession of the subject property. He further submitted that the dispute is in respect of title of the property, which can only be decided in civil proceedings after recording of evidence.

8. However, learned counsel submitted that the applicant is innocent and has been falsely implicated by the complainant with mala fide intentions and ulterior motives as no sufficient evidence of reasonable suspicion against the applicant exists and find out to connect the applicant with the alleged offence. He also submitted that in the facts and circumstances there is no likelihood in conviction of the applicant and the proceedings of the trial Court would be nothing except the agony for the applicant, who is the lawful owner in possession of his property. He submitted that under section 265-K, Cr.P.C. the Courts have concurrent powers to acquit the accused at any stage of the proceedings even before framing of charge. He, therefore, prayed that proceedings pending against the applicant may be quashed. Learned counsel in support of his submissions has placed reliance upon the following cases:-- (1) PLD 2007 Lahore 231, (2) 2010 SCMR 1254, (3) 2011 SCMR 549 and (4) PLD 2010 SC 661

9. Mr. Abdullah Rajput, learned Assistant Prosecutor-General Sindh has opposed the grant of application and has stated the F.I.R. was lodged properly by son of respondent No.2. He supported the impugned order passed by learned ADJ Karachi (East). He further submitted that the Hon'ble Apex Court held in various cases that jurisdiction under section 561-A, Cr.P.C. is an extraordinary one preserved only for extraordinary situations which power must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine. He, therefore, contended that the innocence of the applicant can only be determined after recording of evidence.

10. Conversely, Mr. Arshad Tayebaly, learned counsel for the respondent No.2 strongly supported the view taken by the learned IV Additional District Judge Karachi (East) in his impugned order while dismissing the application under section 265-K, Cr.P.C. filed by the present applicant. He, while making reference to the impugned order contended that the learned A.D.J. has carefully examined all the relevant facts stated in the complaint as well as in the application under section 265-K, Cr.P.C., and rightly recorded his conclusion that the Karachi Co-operative Housing Societies Union Ltd. has verified that the property in question is in the name of respondent No.2 and also the statement of inhabitants of the locality shows that the property in question was in possession of the respondent No.2. He mainly argued that not only the evidence of the complainant/ respondent No.2 has been recorded but the statement of accused under section 342, Cr.P.C. has also been recorded by the trial Court and now the matter is at final stage.

11. Learned counsel, apart from the above, has vehemently opposed for quashment of the proceedings and stated that applicant has forcibly evicted the complainant from his lawfully owned property. In order to strengthen his submission, he placed on record copy of Suit No.85 of 2011 filed by Al-Riaz Cooperative Housing Society against the applicant and others for cancellation and possession with the prayer to cancel the allotment letter and sub-license of property in question issued by the plaintiff's society in favour of the applicant and seeking documents for applicant to hand over documents of the plot in question to respondent No.2 with immediate effect. He submitted that it is clearly established from the above-noted suit that the applicant is encroacher and forcibly occupied the property in question. He further urged that the cases cited by the learned counsel for the applicant are not attracted and distinguishable from the case in hand.

12. Learned counsel further submitted that exercise of powers under section 561-A, Cr.P.C. can be exercised to prevent abuse of the process of any Court or to secure the ends of justice but cannot be exercised mechanically or in every case where there is allegation of false implication or of the evidence being false. He also submitted that exercise of such powers by High Court at pre-trial stage cannot further the ends of justice, if undertaken to determine whether the prosecution evidence likely to come on record is true or false. He, therefore, prayed for dismissal of the instant application. In support of his submissions, the learned counsel has placed reliance upon the case of SHAHBUDIN v. THE STATE (PLD 2010 SC 725).

13. I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the material available on record and the case law cited at the bar.

14. The applicant claimed to be the lawful owner-in-possession of the plot in dispute since 1982 vide certificate of possession issued in his favour and has spent huge amount on construction of the boundary wall and two rooms with bath and kitchen. According to the applicant the plot in dispute was allotted to him by the Al-Riaz Cooperative Housing Society being its member and in the year 2007 the society issued registered Form 'A' Sub-license No.2 dated 9-4-2007 for construction of the plot in dispute in favour of the applicant, but due to financial constraint the sub-license was surrendered with the mutual consent of the applicant and the society on 7-6-2010. Later on, society re-executed Form 'A' in favour of the applicant. Contrary to it, the claim of the complainant Mst. Hajiani Shaher Bano is that she was owner-in-possession of the plot in dispute, duly purchased by her from the original allottee Muhammad Bashir Jan Muhammad in the year 1983 and mutated the same on 2-5-2009. It appears from the record that prior to filing of complaint under Illegal Dispossession Act, the applicant filed Suit No.763 of 2009 in the Court of IV Senior Civil Judge, Karachi (East) against complainant's son and officials respondents for declaration and permanent injunction, which was decreed vide order dated 6th March, 2010, the same is reproduced as under:-- "It is hereby ordered that I decree the present suit of the plaintiff to the extent that the defendants are restrained from dispossessing the plaintiff from the suit property without due course of law."

15. It is settled law that a complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being regulated by a civil or revenue Court. The Illegal Dispossession Act is restricted in its scope and applicability to only those cases where a dispossession from immovable property has allegedly come about, through the hands of a class or group of persons who have the credentials or antecedents of being property grabbers/Qabza Group/land mafia and the said Act does not apply to run of the cases of alleged dispossession from immovable properties by ordinary persons having no such credentials or antecedents, i.e. cases of disputes over possession of immovable properties between co-owners or co-shares, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons vying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an ongoing private dispute over the relevant property. It is, thus, imperative that before entertaining a complaint under the Illegal Dispossession Act, 2005 a Court of Session must feel prima facie satisfied that the persons complained against have the credentials of being property grabbers or they have the antecedents of being members of a Qabza Group or land mafia and it is only after such prima facie satisfaction that the complaint may be entertained by it.

16. Besides, Al-Riaz Cooperative Housing Society has also instituted suit against the applicant for cancellation and possession wherein Al-Riaz Cooperative Housing Society in paragraph (6) of the memo of plaint admitted that plaintiff society by mistake committed by the previous management had allotted the plot in dispute to defendant No.1/applicant and requested him to surrender all transfer documents in respect of the suit plot and hand over peaceful possession thereof to the defendant No.3. It is, therefore, established that applicant is neither encroacher nor belongs to Qabza Group/land mafia and as such the case against the applicant does not fall within the ambit of sections 3, 4 and 5 of the Illegal Dispossession Act. Moreover, the Civil Court passed decree in favour of applicant restraining the defendants/ respondent No.2 from dispossessing the applicant without due process of law. It may, therefore, be observed that in a case in which a civil Court is already seized with the subject matter of dispute and has passed an order regulating possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite party from interfering with the possession of the decree holder fall outside the jurisdiction of a Magistrate under section 145, Cr.P.C.

17. In the circumstances of this case mentioned above, I come to the conclusion that through filing of her complaint under the Illegal Dispossession Act, 2005, the respondent No.2 had tried to transform a bona fide civil dispute between the parties into a criminal case so as to bring the weight of criminal law and process to bear upon applicant in order to extract concessions from him. Such utilization of the criminal law and process by the respondent No.2 has been found by me to be an abuse of the process of law which cannot be allowed to be perpetuated.

18. For what has been discussed above, this Criminal Miscellaneous Application is allowed and proceedings against the applicant be quashed. MH/M-93/K Proceedings quashed.