2016 P Cr (PLP)

SYED MUHAMMAD FAROOQ SHAH, J.

Impugned is the order dated 03.12.2014, passed by the learned IInd Additional Sessions Judge, Mirpurkhas in Cr. Misc. A. No.05/2012 (Jamia Darul Uloom Islamia Ishat-ul-Quran Digri v. Ilyas and others), whereby the complaint filed by the complainant/applicant under sections 3/4 of Illegal Dispossession Act, 2005, was dismissed. The applicant has approached this Court with a prayer to set aside the impugned order.

2. Precisely, facts of the case in hand are that, the applicant, claiming himself to be the President/Chairman and Incharge of Jamia Darul Uloom Islamia Ishat-ul-Quran, Digri, and constructed shops on a piece of land allotted to him by Deputy Commissioner, Tharparkar by order dated 25.11.1969. The said order of the Deputy Commissioner is reproduced herein-below:- "The three plots measuring (i) 1144 (ii) 1584 and (iii) 2376 sq. ft. as shown in the sketch at P-31 of the correspondence, situated in front of police station at Digri are hereby granted to Darul Uloom Islamia Ishaitul Quran Digri on payment of usual Malkano viz. 50 paisa per sq foot." The earlier complaint, filed by the applicant under sections 3/4 of Illegal Dispossession Act, 2005 was dismissed by the trial Court on 07.06.2014, which order was impugned before this Court and this Court by passing order in Cr. Rev. Appl. No.S-132/2014 (available at page-97 of instant file), by consent of both parties set aside the same and the case was remanded back to the learned trial Court to be dealt with in accordance with law, with further direction to the trial Court to decide the same within a period of two months, after receipt of the order.

3. Once again, the trial Court dismissed the complaint vide impugned order dated 03.12.2014, with the following observations, made in penultimate paragraph:- "The report submitted by the SHO does not show that the accused persons have forcibly dispossessed the complainant and illegally occupied the disputed property and it also appeared that the complainant has not acquired title of the disputed shop. In a case law reported in 2009 PCr.R Lahore Page-905, it has been observed by the Honourable High Court of Lahore that the question before the learned Additional Sessions Judge was whether the Petitioner was dispossessed legally or illegally by the Respondents. The learned Additional Sessions Judge was not required to determine the ownership of the property which can only be determined by Civil Court. In the instant case the report of SHO shows that complainant was not forcibly dispossessed from the disputed shop and further it discloses that the complainant has still not acquired the title of the disputed shop. In the above circumstances I am of the humble view that no case in the provisions of Illegal Dispossession Act, 2005 is made out against the accused persons. Consequently, the complaint in hand stands dismissed."

4. Arguments heard, record perused.

5. The contention of the learned counsel for the applicant is that the applicant is owner/legal occupier of the disputed land, hence the aforementioned order passed by the trial Court is not sustainable in law. In support of his contentions, learned counsel for applicant has placed reliance on Muhammad Akram v. Muhammad Yousaf (2009 SCMR 1066), Muhammad Usman S. Memon v. IVth Additional District and Sessions Judge (PLD 2011 Karachi 624), Allah Ditto v. Muhammad Ishaq (2013 YLR 1580), Abdul Qahir v. Bibi Aisha (PLD 2012 Balochistan 189) and Gul Hassan v. Muhammad Usman (2012 PCr.LJ 268).

6. Conversely, Mr. Anwar Jamal, representing the respondents/accused, submits that the applicant/complainant is not the owner of the Darul Uloom, which is run by the Management Committee, but at the most he can be called an occupier. He further submits that the applicant has failed to produce any title document showing his lawful ownership, more particularly, the applicant has filed a suit viz. FC. Suit No. 273/2013 against the Allotment Authority and others wherein he has made a specific prayer to issue ownership documents of the suit plots and has also shown his willingness to pay the required fee in this regard.

7. Learned A.P.G has also supported the impugned order and submits that there is no illegality or gross irregularity and infirmity in it and the same is strictly in accordance with law, whereas the citations relied by the learned counsel for the applicant are not attracting in the peculiar facts and circumstances of the present case.

8. It is an admitted position that under section 3(1) of Illegal Dispossession Act, 2005, the complainant has to allege and show before the court that he is the actual owner or occupier i.e. in lawful possession of the immovable property and the accused has entered into the said property without any lawful authority. The case of the applicants/ complainant is that on 08.04.2012, the accused persons forcibly trespassed into the shops in question by breaking the locks without any lawful justification, hence he is entitled for the relief claimed in the complaint.

9. A careful perusal of the record would reveal that predecessor-in-interest of the applicant was allowed to construct a religious institution, on temporary basis. Undeniably, the Illegal Dispossession Act, 2005, is special enactment, which has been promulgated to discourage the land grabbers and to protect the right of lawful owner and the lawful occupant of the property. Moreso, the applicant is not an aggrieved person and even he was not authorized by the Management committee of "Darul-Uloom" to institute proceedings against the accused. If at all, the aggrieved person may avail other adequate remedy provided by the law to establish his title over the property and thereafter to protest any ingress or illegal encroachment thereof. The Revision Application involves disputed question of facts, which cannot be resolved by this Court. Suffice it to say, that the complainant has failed to produce any document showing his lawful ownership over the shops in question, which he has constructed over the land, allegedly allotted to one Hafiz Muhammad Shafi. Consequently, the instant Criminal Revision Application having no merits for consideration is hereby dismissed. ZC/J-12/Sindh Revision dismissed.