2022 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Through this Criminal Miscellaneous Application, the applicants have assailed the Order dated 08.4.2014 passed by the learned IVth Additional Sessions Judge, Karachi East whereby, he dismissed Criminal Complaint/Petition No.01/2014 filed by the applicants under the Illegal Dispossession Act, 2005.

2. Precisely, the relevant facts for the purpose of deciding this Criminal Miscellaneous Application are; that Niaz Mohammad, since deceased, filed a Criminal Complainant/Petition under the Illegal Dispossession Act, 2005, claiming therein his ownership of Plot No. C-94 Block-9, Gulshan-e -Iqbal Works Co-operative Housing Society Ltd., Karachi on the basis of sale agreement, allotment order, possession issued by Works Co-operative Housing Society Ltd. He stated in the complaint that after three years complainant's son namely Niaz Ali, who is also his attorney, came to Karachi and found the respondents in occupation of the property in question. They even did not allow him to enter the property, therefore, on 17.11.2013, complainant late Niaz Mohammad reported the matter to the SHO, Police Station Aziz Bhatti and on the same date he also sent letter to the Secretary, Works Cooperative Housing Society Limited through his counsel, informing him about illegal occupation of the premises in question by the respondents and also requesting him not to transfer the subject plot in the name of the respondents. He further stated that the utilities provided in the property in question were also disconnected due to non-payment of talky its by the respondents, and that the respondents had been illegally pilfering electricity and gas from the adjoining premises. He prayed for taking cognizance under the provisions of Illegal Dispossession Act, 2005 against the accused persons.

3. After filing the complaint, the learned Additional District and Sessions Judge called a report from the concerned SHO, who submitted his report on 07.02.2014, wherein he stated that during the investigation, the proposed accused Umer Khayam provided utility bills of electricity and gas pertaining to the year 2003 and onwards. Besides, statement of one Muhammad Nazeer son of Wali Zad, resident of Plot No.C-93, Block-9 Gulshan-e-Iqbal Karachi was recorded, who stated that Plot No. C-94 is situated adjacent to his plot in which accused Umer Khayam and Abdul Ali have been residing since 2002. The SHO opined that the actual owner of the plot in question was complainant Niaz Mohammad, whereas, according to Utility Bills, respondents Abdul All and Umer Khayam have been in possession of the plot in question since 2003.

4. Learned ADJ vide impugned order dismissed the complaint. The operative part from the impugned order is reproduced hereunder: "Complainant in Para No. 3 of the memo of petition averred that complainant's son came to Karachi after three years and found that respondents Nos. 1 and 2 have occupied their father's house. Complainant has asserted his ownership on the basis of sale agreement dated 27.04.1983 and allotment as well as acknowledgement of possession dated 23.05.1983. The above discussion leads to a definite conclusion that no specific date and time is alleged as well as three years after merely asserted in Para No. 3 suggest that incident is shown prior to the year 2005. As much as investigation report submitted by the SHO re-affirms the possession of respondents in the subject premises since 2002. It is settled law that provision of Illegal Dispossession Act came in force in the year 2005 which has nor retrospective effect. In view of the above discussion, I am of the humble opinion that the circumstances of the case does not call for taking cognizance in the matter under the provisions of Illegal Dispossession Act, 2005. Accordingly, I dismiss this criminal complaint. However, the complainant is at liberty to seek his remedy before appropriate forum, if he is so advised."

5. The applicants have challenged the said order through instant Criminal Miscellaneous Application.

6. I have heard the learned counsel for the applicants as well as respondents and learned D.P.G appearing for the State and perused the material available on the record.

7. Learned counsel for the applicants has contended that the impugned order has been passed in a hasty and mechanical manner without applying judicious mind to the factual as well as legal aspects of the case. He further contended that while dismissing the complaint the court below did not take into consideration the fact that the respondents themselves have admitted in their parawise reply that the complainant is the owner of the property in question. He further contended that the Court below also ignored the fact that the respondents have not produced any material to establish that they are the co-owners of the property in question. He prayed for setting aside the impugned order and issuance of direction to the trial Court to proceed with the criminal complaint in accordance with the law.

8. Conversely, learned D.P.G appearing for the State, while supporting the impugned order, contended that the same has been passed in accordance with law after properly taking into consideration the factual and legal aspects of the case. According to him, the criminal complaint under the Illegal Dispossession Act, 2005 was not maintainable as admittedly the respondents have been in possession of the premises in question since 2003, thus the Act, 2005 cannot be given retrospective effect. He further contended that the question of title / ownership cannot be decided in the proceedings under the Illegal Dispossession Act and it is only the Civil Court of competent jurisdiction to determine such fact. He prayed for dismissal of the Criminal Miscellaneous Application.

9. At the very outset, I would like to deal with the finding of the Court below that the facts mentioned in the complaint lead to the conclusion that the alleged incident had taken place prior to the year 2005, as such, the Illegal Dispossession Act, 2005 cannot be given retrospective effect. In support of this finding, it was observed that no specific date and time has been mentioned in the complaint when the complainant's son came to Karachi and found the respondents in illegal possession of the property in question. According to him, words 'after three years' have been mentioned only in order to conceal the actual date of the alleged incident. He further observed that such fact is also supported by the investigation conducted by the SHO, who has opined in his report that on the basis of utility bills as well as the statement of the neighbourer, the respondents seem to be in possession of the property in question since 2002.

10. In this respect, it may be observed that even if it is presumed that any incident of illegal dispossession had taken place before the promulgation of the Act, 2005 but no case against the illegal occupant was pending before any other forum at the-time of promulgation of the Act ibid, then the Illegal Dispossession Act, 2005 could be made applicable against such illegal occupants. However, if any case against such illegal occupant was already pending before any other forum, then the Act, 2005 would not be applicable. In this connection, reference may be made to a decision of the Honourable Supreme Court given in the case of Rahim Tahir v. Ahmed Jan and 2 others reported in PLD 2007 Supreme Court 423, wherein it was held as under: "There is no cavil to the legal proposition that Illegal Dispossession Act, 2005 having no retrospective effect, may not be applicable to the cases of unauthorized occupants pending before any other forum on the date of promulgation of the above act but if the case of an illegal occupant was not already pending before any other forum on the date of enforcement of this Act, the same would be squarely fall within the ambit of this Act. The expression "grab, control or occupy" used in section 3 of the Act cannot be restricted to the illegal occupants who entered in the premises subsequent to the promulgation of the Act rather all cases of illegal and unauthorized occupants would be subject to the Illegal Dispossession Act, 2005, except the cases which were pending adjudication before other forums." It was further observed that; "The contention that Illegal Dispossession Act, 2005, is not applicable to an illegal occupant, who was in in??????????? occupation of the premises prior to the date of the promulgation of the Act, has no substance. The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants."

11. In view of dictum laid down by the honourable Supreme Court, the aforesaid finding of the Court below is not in consonance with the law, thus, having no sustainability.

12. However, there is another aspect of the case, but before dealing with the said aspect, it may be observed that the scope of Illegal Dispossession Act, 2005 is very limited and the Court, exercising powers under section 3 of the Act, is merely supposed to determine the fact as to whether who was in actual physical possession of the property in question before filing of the complaint and as to whether the complainant was dispossessed in an illegal and unlawful manner by the persons arrayed as accused/opponent in such complaint. However, the Court is not competent to give any finding with regard to the title or ownership or, for that matter, in respect of authenticity/genuineness of a document. In this connection, reference may be made to the cases reported as Rahim Tahir v. Ahmed Jan and others (2007 PCr.LJ 1920) and Gulzar Ali and another v. Station House Officer, Police Station Kandiaro and others (PLD 2012 Sindh 390).

13. In the case reported as Asim Siddique Butt v. Mohammad Khursheed Mirza and 4 others (2017 YLR Note 64 [Lahore]) it was held as under: "The bare reading of the preamble makes it manifest that the enactment has been done to protect the lawful owners and occupiers of immoveable property from their illegal or forcible dispossession therefrom meaning thereby, the forcible or illegal dispossession of the occupier is a prerequisite to set the special law ibid into motion."

14. Now examining the instant case in the light of the guidelines provided by the Superior Courts, from the perusal of the complaint filed by complainant Niaz Mohammad, since deceased, it seems that his grievance was that after three years his son namely Niaz Ali came to Karachi and found the respondents in occupation of the property in question and that they did not allow him to enter the property. It would be advantageous to reproduce hereunder the relevant portions from the said complaint: "

3. That the complainant's son came to Karachi after three years and found that the respondents 1 and 2 have occupied their father's house and refused to let the complainant's son into the property. The son thereafter apprised the complainant of this fact. Further they threatened the complainant's yon that this property from now on is theirs and the complainant was free to do whatever in his power to dispossess them.

4. That the respondent No.1 and 2 entered the house without the permission of the complainant, the latter being the lawful owner. Thereafter, the respondents 1 and 2 unlawfully possessed the house with the intention of permanently dispossessing the complainant from the ownership of his property." In para 5 of the complaint it was stated: "Further that the respondents, due to non-payment of utilities, have resulted in Sui Southern Gas Company Limited and Karachi Electric Supply Corporation in disconnecting their supplies .....

8. That the cause of action arose 3 years back, when the respondents 1 and 2 entered the property belonging to the complainant without any lawful reason... ..."

15. From the above, it is crystal clear that nowhere in the entire complaint the complainant has alleged that the respondents had illegally or forcibly dispossessed him or his family from the property in question. He also categorically admitted that three years ago the respondents had entered the property in question. In the case of Asim Siddique Butt, supra, the honourable Lahore High Court has specifically held that "the forcible or illegal dispossession of the occupier is a prerequisite to set the special law ibid into motion". In this view of the matter, it is obvious that the basic ingredient for setting the provisions of Illegal Dispossession Act, 2005 into motion is lacking in the instant case as it is not, at all, the case of the complainant that he was in possession of the property in question and the respondents on certain specific date and time illegally entered the property in question and forcibly or illegally dispossessed him therefrom. The fact that the respondents have been in possession of the premises in question for a considerable period is also evident from the admission of the complainant himself to the effect that "the respondents, due to non-payment of utilities, have resulted in Sui Southern Gas Company Limited and Karachi Electric Supply Corporation in disconnecting their supplies". Nowhere in the entire complaint, the complainant has alleged his illegal or forcible dispossession at the hands of the respondents. His grievance is only that in their absence the respondents entered the premises in question illegally.

16. For the aforesaid reasons, the instant Criminal Miscellaneous Application being meritless is hereby dismissed along with all the pending Miscellaneous Applications. SA/N-11/Sindh Application dismissed.