2009 PLP 2158 (YLR)

MUNIB AHMAD KHAN, J.

This Cr. Revision has been filed against the order dated 28-1-2008 passed by the Additional Sessions Judge, Karachi-East. Learned counsel submits that the learned Court has dismissed the criminal complaint simply on the ground that law of Illegal Dispossession Act, 2005 was not applicable retrospectively. She submits that the learned Court has failed to appreciate PLD 2007 SC 423; -PLD 2008 Karachi 369; PLD 2008 Karachi 400; PLD 2008 Karachi 518; and PLD 2008 Karachi

480. She submits that the illegal dispossession, according to above ruling, continues on each and every date when a person, who is not entitled to a property enters in the premises and that cause continues till the person is dispossessed. Learned counsel has pointed out that the premises in question bearing Plot No. 1791 (old number B-1067), St No. 8, G-36, Sharif Colony, Landhi was in a Katchi Abadi and the applicant is in possession since 1983 as the said premises has been purchased by the applicant from one Muhammad Ahmed. She submits that some of the bills are still in the name of Muhammad Ahmed or in the name of applicant's husband and that respondent filed Suit bearing No. 1451/2006 for injunction only which was disposed of on the statement of the applicant that dispossession will not be effected through illegal gleans. Thereafter, criminal complaint under Illegal Dispossession Act has been filed but same has been dismissed. On the other hand, learned counsel for the respondent submits that respondent has purchased this property in 1983 through an agreement and since then he is in possession while real factual position was submitted before the ADJ, who passed order after going through the contents. After hearing the learned counsel, it appears that it is very strange on the part of the learned ADJ that she has given a finding in respect to the applicability of Illegal Dispossession Act, 2005 and has discussed its retrospectively but has totally failed to notice the authorities pointed out by the learned counsel for the applicant. The authorities of the Honourable Supreme Court as well as of this Court are clear that illegal possession of a person remains in continuity notwithstanding the fact that the has acquired the possession even prior to the promulgation of the Illegal Dispossession Act and cause of action has accrued after promulgation of illegal Dispossession Act and continues till the person in illegal possession is not dispossessed. The Court trying such type of issue has to go to the merit of each case to ascertain as to whether the issue before it pertains to simple case of illegal dispossession or both the parties have some force towards their title through their documents to possess the property. The Courts taking action under Illegal Dispossession Act, after inquiry through police, can take up the issue in evidence as well as can scrutinize the documents and claims through the evidence on record and give its finding. In such a situation and with the consent of both the learned counsel, the impugned order is set aside and the case is remanded back to the ADJ to decide the matter keeping in view the above authorities, within a period of two months. Criminal Revision Application stands disposed of. H.B.T./H-23/K Case remanded.