2023 PLP 9 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Through this Criminal Revision Application applicant has assailed the Order dated 28.10.2019 passed by learned Xth Additional District and Sessions Judge, Karachi West, whereby he allowed Direct Complaint No.111 of 2019, moved by the complainant/Respondent No.1 under section 7 of Illegal Dispossession Act, 2005 and S.H.O. concerned was directed to get the property in question handed over to the complainant within 15 days.

2. I have heard learned advocates appearing for the applicant and respondent No.1, as well as learned A.P.G. appearing for the State and perused the material available on the record.

3. Brief fact relevant for deciding instant Cr. Revision Application, are; that the respondent No.1 filed a Direct Complaint under sections 3 and 4 of the Illegal Dispossession Act, 2005. Along with the said complaint an application for interim relief under section 7 of the Act, 2005 was also filed. In the complaint, he stated that he is the lawful owner of property i.e. land admeasuring 01 Acre 80 Square Yards from Survey No.3/03-02 of Deh Maochko, Taluka Maripur, Karachi by virtue of registered sale-deed bearing No.2, Book No.1, dated 05.01.2016 before Sub-Registrar. Kemari Town, Karachi and had constructed eight shops on the said property in front of New RCD Highway and was lawfully enjoying the possession of said shops. In the month of March 2019, the complainant received summons/notice from IIIrd Senior Civil Judge, Karachi West that accused / present applicant, Noorullah, was claiming the tenancy right over four constructed shops of the complainant and it also came into his knowledge that the applicant was also running a hotel in the name and style of Zilzila Quetta Hotel as such he was shocked and appeared before the Court and contested aforesaid suit. The complainant then approached concerned SHO for appropriate relief but no action was taken by him, as such he filed the complaint along with instant application under section 7 of the Act, 2005. A detailed inquiry report was called by the trial court from concerned S.H.O., who reported that respondents / accused were in occupation of property in question since 2016 under tenancy agreement with one Dil Murad on monthly rent of Rs. 30,000/-. The S.H.O. also reported that as per verification report obtained from concerned department, the property in question was in the name of complainant. On 07.08.2019, trial Court directed XIV-Judicial Magistrate, Karachi West to conduct detailed inquiry into the matter and submit his report. Accordingly, learned Judicial Magistrate submitted inquiry report on 23.09.2019. Trial Court after receiving inquiry report from the concerned Magistrate, took cognizance of the matter vide order dated: 01.10.2019 and issued bailable warrants against the accused. Notice of the application under section 7 of the Act, 2005 was also served upon applicant i.e. respondent No.1 in the complaint, while accused/respondents Nos.2 and 3 failed to appear before the trial Court and warrants against them were issued by the Court.

4. After hearing the parties, trial Court allowed the application under section 7 of the Act, 2005, as stated above, hence instant Cr. Revision Application by the applicant / accused.

5. I have heard learned counsel for the applicant, learned counsel for respondent No.1 / complainant, as well as learned A.P.G. appearing for the State and perused the material available on the record. Process issued against Respondents No.2 and 3 were returned served by S.H.O. Waseem Muhammad of Police Station Mouchko along with his report which were taken on record; however, no one appeared on behalf of Respondents Nos. 2 and 3.

6. Learned counsel for the Applicant submitted that Applicant is in lawful possession of the demised premises as he entered into a tenancy agreement with Dil Murad / Respondent No.3 on 07.03.2016; copy of tenancy agreement has been placed on the Court file, which is available at page-203. He next submitted that Respondent No.1 / complainant has no right to dispossess the applicant and even the impugned order is illegal as Trial Court has acted beyond its jurisdiction by directing the Applicant to hand over possession of the disputed property to Respondent No. 1/complainant during pendency of case / trial. He further submitted that Applicant has already filed Civil Suit No.514 of 2019 before the Court of IX-Senior Civil Judge, Karachi (West) against said Dil Murad as well as complainant / Respondent No.1. In support of his contention he has filed copy of Written Statement, filed by him in the said suit, which is available at page-217 of the Court file. He prayed that by granting instant Revision Application impugned order dated 28.10.2019 may be set aside and the trial Court may be directed to proceed with the trial on merits. In support of his contention, he placed reliance on the case law reported as PLD 2011 Supreme Court 181, 2013 PCr.LJ 953, PLD 2015 Lahore 93, 2016 SCMR 2039 and 2009 MLD 1162.

7. On the other hand, learned counsel for Respondent No.1/complainant submitted that he is the lawful owner of disputed property, which he purchased from Messrs Muhammad Hanif and Muhammad Tayyab, through Sale Deed dated 21.05.2015, which is available at page-59 of Court file. He next submitted that the applicant/accused has maneuvered false agreement with one Dil Murad/ Respondent No.3, who was not owner of the property, nor was in possession of any title document. He further submitted that according to his knowledge, said Dil Murad is a dummy person and his name has only figured in order to defeat the rights of Respondent No.1 / complainant in the property in question. He further submitted that in Civil Suit No.514 of 2019 filed by the Applicant before the concerned Court, Written Statement has been filed by Respondent No. 1/ complainant and contention raised by the Applicant in the plaint of the said suit has been vehemently denied by Respondent No.1/complainant. Even in the civil suit said Dilmurad has not been served and has been declared ex parte. He further submitted that if said Dil Murad was / is in existence, he would have contested said suit and favoured the Applicant. Lastly, he submitted that all this fraud has been committed by the Applicant/accused so that he may continue with his illegal occupancy over the disputed property. He, therefore, submitted that the impugned order does not suffer from any illegality or infirmity, thus instant revision application merits no consideration and is liable to be dismissed.

8. Learned Assistant Prosecutor General, Sindh also opposed the contention of learned counsel for the Applicant and supported the impugned order.

9. It seems that after filing of complaint under the Illegal Dispossession Act, 2005, the trial Court directed the concerned S.H.O. to probe into the matter and submit his report which was submitted by him. According to the said report, the complainant / respondent was found to be lawful owner of the property in question. It was further mentioned in the report that respondents Nos. 1 to 3 had not entered into property in question with the consent of complainant and that respondents Nos. 1 to 3 had no concern with the property in question. Apart from this, trial Court also directed learned XIVth Judicial Magistrate, Karachi West to hold an inquiry into the matter; consequently, learned J.M. after holding such inquiry, submitted his report on 23.09.2019. In the report it was, inter alia, mentioned that from perusal of the documents and record it appeared that the complainant/respondent No.1 possessed proprietary/ ownership rights of the shops in question, whereas the applicant/ accused, Noor Ullah was claiming to be in occupation/possession of the said shops on the basis of a tenancy agreement allegedly entered into by him with respondent Dil Murad without showing any title or right of ownership of respondent Dil Murad. It was further stated in the report that applicant Noorullah has neither disputed ownership of the complainant in the suit filed by him nor he claimed to be the tenant of complainant, thus he appears to be in unauthorized possession of the said shops.

10. Besides above, the plea raised on behalf of the applicant is; that as civil litigation is already pending between the parties, therefore cognizance under the Illegal Dispossession Act, 2005 could not be taken by the trial Court. In this connection, it may be observed that there is no bar in filing of and/or proceeding with the complaint under the Illegal Dispossession Act, 2005 even during pendency of civil litigation. In the case of Walifa Jana and 2 others v. Rahim Jan and another (2012 MLD 1652) it was held as under;_ "The pendency of civil litigation also does not debar the complaint under Illegal Dispossession Act nor the court can summarily dispose of the proceedings the way, has been done."

11. In another case reported as Shaikh Mohammad Naseem v. Mst. Farida Gul reported in 2016 SCMR 1931, a five members Bench of Honourable Supreme Court held as under;_ "Any act which entails civil liability under civil law as well as criminal penalty under criminal law, such as the Illegal Dispossession Act, 2005 then a person can be tried under both kinds of proceedings, which are independent of each other. Once the offence reported in the complaint stands proved against the accused within the confines of the provisions of the Illegal Dispossession Act, 2005 then he cannot escape punishment on the ground that some civil litigation on the same issue is pending adjudication between the parties. No one can be allowed to take law in his own hands and unlawfully dispossess an owner or lawful occupier of an immovable property and then seek to thwart the criminal proceedings initiated against him under the Illegal Dispossession Act, 2005 on the pretext that civil litigation on the issue is pending adjudication between the parties in a court of law. Therefore, irrespective of any civil litigation that may be pending in any Court, where an offence, as described in the Illegal Dispossession Act, 2005, has been committed, the proceedings under the said Act can be initiated as the same would be maintainable in law."

12. Yet in another case reported as Mohammad Aslam v. The State and others (2017 SCMR 390) it was observed by Honourable Supreme Court that there is no universal principle that whenever a civil suit and a criminal case involved similar or identical subject matters, the proceedings before the criminal court must necessarily be stayed. In view of this legal position the said plea of the applicant is totally untenable.

13. Learned counsel for the applicant has also laid much stress upon his submission that the trial Court without conducting the proceedings as provided under the Criminal Procedure Code and section 5 of the Illegal Dispossession Act, 2005 i.e. without framing of charge, recording of evidence etc. has straight away ordered for dispossession of the applicant, thus the same is not warranted under the law. Before dealing with this submission, it would be appropriate to reproduce hereunder the contents of section 7 of the Illegal Dispossession Act, 2005;_ "

7. Eviction and mode of recovery as an interim relief

(1) If during trial the Court is satisfied that a person is found prima facie to be not in lawful possession, the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession. (2) Where the person against whom any such order is passed under subsection (1) fails to comply with the same, the Court shall, notwithstanding any other law for the time being in force, take such steps and pass such order as may be necessary to put the owner or occupier in possession. (3) The Court may authorize any official or officer to take possession for securing compliance with its orders under subsection (1). The person so authorized may use or cause to be used such force as may be necessary. (4) If any person, authorized by the Court, under subsection (3), requires police assistance in the exercise of his power under this Act, he may send a requisition to the officer-incharge of a police station who shall on such requisition render such assistance as may be required. (5) The failure of the officer-in-charge of police station to render assistance under subsection (4) shall amount to misconduct for which the Court may direct departmental action against him."

14. From a bare perusal of the Heading of and subsection (1) to section 7 of the Act, 2005, it is crystal clear that, in fact, this is an interim relief which provides that during the pendency of the trial of main case/ complaint filed under Section 3 of the Act, 2005, if trial Court is satisfied, on the basis of available material, prima facie the proposed accused in the main case / complaint is not in lawful possession, then the Court shall, as an interim relief direct him to put the owner or occupier, as the case may be, in possession. From the language of this section it is apparent that it has nothing to do with the proceedings of the main case / complaint which would be decided on its own merits after conclusion of the trial. From the perusal of the impugned order it appears that it starts from the wordings, "By this order I intend to dispose of present application under section 7 of Illegal Dispossession Act ." In this view of the matter the plea of the applicant that the procedure laid down in section 5 of the Act, 2005 has not been followed before passing the impugned order is devoid of force, because such procedure is to be adopted while deciding the main application / complaint under section 3/4 of the Illegal Dispossession Act, 2005 and not while disposing of the application for interim relief under section 7 of the Act, 2005.

15. The upshot of above discussion is that I do not find any illegality infirmity or material irregularity in the impugned order, therefore it does not require any interference by this Court in exercise of its revisional jurisdiction. Accordingly, Criminal Revision Application is dismissed along with pending application(s). Consequently, interim order passed earlier on 01.11.2019 is hereby recalled, and the impugned Order dated 28.10.2019 passed by learned Xth Additional District and Sessions Judge. Karachi West, whereby he allowed Direct Complaint No.111 of 2019, moved by the complainant / Respondent No.1 under section 7 of Illegal Dispossession Act, 2005 is hereby maintained. However, the main case / complaint under sections 3/4 of the Illegal Dispossession Act, 2005 would be decided by the trial Court on its own merits.

16. Copy of this order be facsimiled to learned trial Court through learned Sessions Judge, concerned with directions to expedite the trial of instant case and ensure its early disposal under intimation to this Court through MIT-II. SA/N-31/Sindh Application dismissed.