2024 PLP 1199 (MLD)

Tariq Mehmood Jahangiri, J.

Through the instant criminal revision petition filed under section 439 Cr.P.C. read with section 435 Cr.P.C., the petitioner has challenged order dated 15.01.2024, passed by learned Additional Sessions Judge-X, West-Islamabad, whereby, application filed by the petitioner under Section 265-D Cr.P.C. was dismissed.

2. Brief facts of the case are that the petitioner and respondent No.1 are real brothers and co-owners / co-sharers of Unit No.14, consisting of two shops No.14-A and 14-B and one flat, situated in Block No.12-C, F-7 Markaz, Jinnah Super Market, Islamabad. Suit property was gifted by Ch. Daud Ahmad in favor of the petitioner and respondent No.1 through a registered Gift Deed dated 11.02.1990. After registration of gift deed, suit property was transferred in the name of petitioner and respondent No.1 in the record of CDA and till to date the suit property was not properly and legally partitioned between them. On 06.08.2020, respondent No.1 filed a suit for declaration, cancellation and permanent injunction against the petitioner which is still pending before the competent court of law.

3. Petitioner filed a suit for possession through ejectment of suit property titled as "Rana Muhammad Sadiq v. Abdul Qayoom etc." in the year 1992 before Civil Court of Islamabad in which possession of suit property was handed over to him. On 10.02.2021, respondent No.1 filed a suit for restoration of possession under section 9 of the Specific Relief Act, 1877 regarding the same property, having civil suit No. 12/2021 which is pending in the Court of learned ADJ (West) Islamabad which is the same court where the petition under sections 3, 4 and 7 of Illegal Dispossession Act, 2005 was instituted by respondent.

4. Respondent No.1 moved an application against the petitioner for registration of FIR during the pendency of civil litigation. Later on the respondent No.1 filed a complaint under Sections 3, 4 and 7 of Illegal Dispossession Act, 2005 dated 17.08.2020, against the petitioner and his son namely Umar Sadiq Rana. After submission of police report, learned trial Court on 12.07.2021, again ordered to submit report and vide order dated 29.04.2023, accepted the application filed under Section 7 of Illegal Dispossession Act, 2005 by respondent No.1 and directed the petitioner to hand over the possession of suit property to respondent No.1 during the trial. Being aggrieved from the order dated 29.04.2023, the petitioner filed criminal revision before this Court, vide order dated 19.06.2023 the petition was accepted, orders dated 30.10.2021 and 29.04.2023 and all subsequent orders of trial Court were set aside and possession of disputed shops was restored in favour of the petitioner.

5. Learned trial Court again ignoring the police report and evidence admitted the complaint under Sections 3, 4 and 7 of the Illegal Dispossession Act, 2005 and summoned the petitioner and his son as an accused in the complaint. After summoning, the petitioner moved an application under section 265-D Cr.P.C. before the learned trial Court which was dismissed vide impugned order dated 15.01.2024, passed by learned Additional Sessions Judge-X, West-Islamabad, hence instant criminal revision.

6. Learned counsel for the petitioner, inter alia, contends that impugned order dated 15.01.2024, passed by learned trial Court is against the law and facts of the case; parties are real brothers and co-owners/co-sharers in the subject property therefore Illegal Dispossession Act is not applicable; civil litigation is pending between the parties in the District and Civil Court Islamabad; findings of the learned trial Court are against the natural justice; impugned order is erroneous, not tenable under the law, hence liable to be set aside.

7. On the other hand, learned counsel for respondent No.1 has controverted the arguments advanced by learned counsel for the petitioner and stated that impugned order is well reasoned and has been passed in accordance with law and has prayed for maintaining the same.

8. Arguments advanced by learned counsel for the petitioner and learned counsel for the respondent have been heard and record has been perused with their able assistance.

9. Respondent No.1 / complainant filed a complaint under sections 3, 4 and 7 of illegal Dispossession Act, 2005 on 17.08.2020, which was admitted for regular hearing. Learned trial Court vide order dated 30.10.2021, issued summons against the petitioner for facing trial in the complaint.

10. The petitioner challenged the order dated 30.10.2021, against his summoning in first revision petition filed under Section 439 Cr.P.C. read with Section 561-A Cr.P.C. on 10.11.2021 before this Court and also sought quashing of complaint filed by respondent. First revision petition was dismissed as having been withdrawn on 25.01.2022, by Hon'ble Bench-II of this Court.

11. Following grounds for quashing of complaint filed under Sections 3, 4 and 7 of Illegal Dispossession Act, 2005 and setting aside summoning order dated 30.10.2021, were taken in the first revision petition: i. That the impugned order dated 30.10.2021 of the trial Court is against the law and facts of the case. ii. That the learned trial Court did not consider the first Report under section 173 Cr.P.C. and on the same set of evidence, statement of witnesses and parties considered the second Report under section 173 Cr.P.C. and summoned the petitioners as accused persons in the complaint. iii. That after submission of first Report under section 173 Cr.P.C., no further facts or material was surfaced and no new statements of any witnesses were recorded to submit the second Report under section 173 Cr.P.C. which itself make the above said two reports self-contradictory and against the law and facts. iv. That admittedly the parties are real brothers and co-sharers and co-owners in the subject / suit property and therefore the Illegal Dispossession Act is not applicable to the co-owners and co-sharers as per dictum laid down by the superior Courts, which fact has been totally ignored by the learned trial Court. v. That admittedly the civil litigation is pending adjudication before the district and civil courts and the fate of the subject property is yet to be decided by them and the factually controversy regarding the said property is to be declared by the civil Court and in such situation the criminal proceedings are not called for. vi. That the respondent / complainant avail the remedy of suit for restoration of possession under Section 9 of the Specific Relief Act 1877, having civil suit No.12/2021 which is pending in the court of learned Additional District Judge-X (West) Islamabad, which is also remedy for possession of property and thereafter instituting the criminal proceeding clearly show that the intention of the respondent / complainant is only to humiliate and harass the petitioners / respondents in one way or the other. vii. That the learned Trial Court misconstrued the law on the subject and illegally summoned the petitioners as accused persons without appreciating the facts and circumstances of the first report and the valuable evidence available on the file. viii. That the first report under Section 173 Cr.P.C. declared the petitioners in possession of the suit / subject property before the date of occurrence after conducting proper inquiry and thereafter as per the second report under section 173 Cr.P.C. by the same police station contradictory fact were brought therein which fact has totally been ignored by the trial Court."

12. After dismissal of first revision petition, proceedings before learned trial Court continued whereby learned trial Court accepted the petition filed under section 7 of Illegal Dispossession Act, 2005 filed by respondent vide order dated 29.04.2023. The petitioner filed second revision petition on 02.05.2023, challenging the order dated 29.04.2023, on the same grounds as taken in the first revision petition but surprisingly the petitioner did not disclose filing of first revision petition and its dismissal having been withdrawn by Hon'ble Bench-II of this Court in the second revision petition. Vide order dated 19.06.2023, second revision petition was allowed and orders dated 30.10.2021 and 29.04.2023, passed by learned trial Court were set aside, possession of the petitioner was restored and learned trial Court was directed to decide the complaint in all respects within a period of six (06) months.

13. On 07.11.2023, the petitioner filed third revision petition bearing No.172/2023, challenging the order dated 06.10.2023, passed by learned trial Court, whereby he was summoned as an accused to face the trial, quashing of complaint being not maintainable was also prayed / sought in said petition, which was also dismissed as withdrawn by this Court on 20.11.2023.

14. Though it was a third revision petition but learned counsel for the petitioner mentioned in the certificate given at the bottom of the petition that: "This is Second Revision Petition being filed before this Honorable Court"

15. In the third revision petition the same eight grounds which were taken in the first revision petition were mentioned.

16. Now this is the fourth revision petition filed in this Court challenging the order dated 15.01.2024, passed by learned Additional Sessions Judge-X, West-Islamabad, whereby application filed under section 265-D Cr.P.C. by the petitioner was dismissed.

17. Instant / fourth revision petition has also been filed on the basis of same eight grounds which were taken in all the previous three revision petitions.

18. As the previous two criminal revision petitions seeking quashing of complaint have already been dismissed by this Court, the petitioner has filed second revision petition by misrepresentation and concealment of facts that first revision petition was dismissed by Hon'ble Bench-II of this Court.

19. This Court vide order dated 19.06.2023, in Criminal Revision petition No.69 of 2023, has directed the learned trial Court to decide the complaint in all respects within a period of six (06) months. Said order has never been assailed and attained finality, according to which learned trial Court was bound to decide the complaint on or before 19.12.2023.

20. Above-mentioned conduct of the petitioner clearly shows that he is deliberately delaying the matter on one pretext or the other and is avoiding to face the trial.

21. There is police report dated 17.09.2021, against the petitioner submitted in the learned trial Court. Report dated 22.08.2020, by A.S.P / SDPO Kohsar Circle is available on record, wherein after conducting thorough inquiry, he has given following findings:

22. Said inquiry report of ASP / SDPO was also agreed by the S.P (City) Zone, Islamabad vide his report dated 31.08.2020. Even disciplinary proceedings had been initiated against the then S.H.O Police Station Kohsar and Athar Hussain, A.S.I, whereby minor punishment of forfeiture of two years approved service was awarded.

23. There are eye-witnesses of the occurrence whose statements are available on record.

24. Scope of acquittal under Sections 265-K, 249-A and 265-D, Cr.P.C. is very limited. In this regard law laid down by Hon'ble Supreme Court of Pakistan is as follows: i. In case of "Model Customs Collectorate, Islamabad v. Aamir Mumtaz Qureshi" (2022 SCMR 1861), it has been held that: "There is no cavil to the proposition that by enacting sections 249-A and 265-K, Cr.P.C., the Legislature provided power to acquit an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that the charge is groundless or that there is no probability of the accused being convicted of any offence. But acquittal, under the said sections, could be made only if there was no probability of conviction of the accused. However, each case must be judged on its own special facts and circumstances and the reasons are to be recorded in support of conclusion that charge is groundless or that there is no probability of accused being convicted. If there is remote probability of conviction then of course courts are not empowered to invoke the said provisions i.e. 249-A and 265-K Cr.P.C. Reliance in this regard may be placed on the case of The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544) wherein it was held that though there is no bar for an accused person to file application under section 249-A, Cr.P.C. at any stage of the proceedings of the case yet the facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage. The special or peculiar facts and circumstances of a prosecution case may not warrant filing of an application at a stage." ii. In case titled as "Bashir Ahmad v. Zafar ul Islam" (PLD 2004 SC 298) Hon'ble Supreme Court of Pakistan did not approve decision of criminal cases on an application under section 249-A, Cr.P.C. or such allied or similar provisions of law, namely, section 265-K or section 561-A, Cr.P.C. and observed that usually a criminal case should be allowed to be disposed of on merits after recording of the prosecution evidence, statement of the accused under section 342, Cr.P.C., recording of statement of accused under section 340(2), Cr.P.C. if so desired by the accused persons and hearing the arguments of the counsel of the parties and that the provisions of section 249-A, section 265-K and section 561-A of the Cr.P.C. should not normally be pressed into action for decision of fate of a criminal case especially when apparently there is probability of conviction after recording evidence. In the present case, trial court disrupted the normal course of law against the mandate of supra judgment i.e. Bashir Ahmad v. Zafar ul-Islam and others (PLD 2004 SC 298). iii. In a case titled as "The State through Collector Customs and Excise, Quetta v. Azam Malik and others" (PLD 2005 SC 686) it is held as under:- "

22. This brings us to the third question i.e. whether the prosecution had sufficient material/evidence to warrant the prosecution of the respondents or there was no probability of accused being convicted of any offence. We have gone through the FIR registered against the respondents and the absconding co-accused as also the evidence led before the Court. There were serious allegations that there was tampering/overwriting/cutting of the relevant register of bills of entry, the matter was inquired into at the departmental level and the allegations were found to be correct. Ex facie there was documentary, oral and circumstantial evidence to prove the charges. In the face of this material the Trial Court could not have invoked section 265-K, Cr.P.C. and acquit the respondents." Reliance may also be placed on the cases of "Muhammad Sharif v. The State" (PLD 1999 SC 1063), "Ghulam Farooq Tarar v. Rizwan Ahmad and others" (2008 SCMR 383). iv. In the supra judgment of "Model Customs Collectorate, Islamabad v. Aamir Mumtaz Qureshi" it has also been held that: "in appellate or revisional proceedings, the same sanctity cannot be accorded to acquittals at intermediary stages such as under, section 249-A or 265-K Cr.P.C., as available for those recorded and based on full-fledged trial after recording of evidence. In appeal or revision proceedings, the order of acquittal of the accused under section 249-A or section 265-K of the Cr.P.C. would not have the same sanctity as orders of acquittal on merits. Consequently, the principles which are to be observed and applied in setting aside concurrent findings of acquittal or the principle relating to the presumption of double innocence when an accused is acquitted after a full-fledged inquiry and trial, would not be applicable to the acquittals under section 249-A, Cr.P.C. or section 265-K, Cr.P.C." Reliance is also placed on law laid down by this Court is a case titled as "Director (I&I) Inland Revenue, Islamabad v. Chaudhary Riaz Ahmed and 04 others", (ILR 2023 IHC 317).

25. In view of above and law laid down by Hon'ble Supreme Court of Pakistan, instant criminal revision petition is dismissed being meritless. Learned trial Court is directed to conclude the trial and finally decide the matter within a period of three (03) months. Parties are directed to appear before the learned trial Court on or before 19.03.2024. JK/21/Isl. Petition dismissed.